FPSLREB Decisions

[1]    This case involves a decision by the employer, pursuant to the Treasury Board Conflict of Interest and Post-Employment Code for the Public Service (the Code) prohibiting the grievor from accepting a bequest by a former client.

[2]    The grievor claims the action taken by the employer is disciplinary in nature and has resulted in a financial penalty to him. He seeks a declaration that he be entitled to accept the bequest.

[3]    Counsel for the employer made a preliminary objection that the Board lacked jurisdiction to address the grievance. He maintained that the Board's jurisdiction is prescribed under sections 91 and 92 of the Public Service Staff Relations Act (the Act), and because no discipline was imposed upon the grievor, the Board did not have jurisdiction to hear the matter.

[4]    I declined to make an immediate ruling on the issue of jurisdiction and proceeded to hear the case. Accordingly, I shall discuss the case as presented and address the arguments regarding the preliminary objection in that context.

Facts

[5]    The facts were not in dispute. Most of the relevant information is contained in the documentation filed in Ottawa with the Board. However, specific documents were entered as exhibits and counsel for the employer called one witness to provide context to the facts and the substantive issue. That witness was Mr. Rick MacLeod, the Chief Pension Advocate, in the employer's Bureau of Pensions Advocates located in Charlottetown, Prince Edward Island.

[6]    Mr. MacLeod testified that the Bureau of Pensions Advocates has existed in different forms since World War I. In 1972, Parliament created a system to deliver independent legal advice and representation to veterans. That system is now contained in the Pensions Advocates Bureau (the Bureau). The Bureau assists disabled veterans, service members and RCMP officers in obtaining benefits to which they or their families may be entitled by appealing decisions made by the Department of Veterans Affairs.

[7]    The grievor, Mr. Daniel Israel Assh, is a lawyer employed with Veterans Affairs Canada as a Pensions Advocate in the Bureau of Pensions Advocates in Edmonton. He has been so employed for many years. On January 17, 2002, Mr. Assh filed a grievance in the following terms:

In accordance with Section 32 of the "Conflict of Interest and Post Employment Code for the Public Service" and my Collective Agreement, I grieve the decision of Mr. Dan Fenety, directing me to decline the referenced bequest, as communicated to me by correspondence dated Jan 11, 2002.

[8]    A letter dated June 26, 2002, directed to Mr. Elkin, Regional Director, Pensions Advocacy, which was submitted to the employer during the course of the grievance process, outlined the circumstances of the grievor's dealings with his client Mrs. Orn, how he learned of the bequest, and the initial steps he took. That letter reads:

By way of background, I should explain that on the 24^th of August 2001, I received a telephone message from the law office of James H. Odishaw, Barrister and Solicitor, advising me that I was a beneficiary of the estate of the late Maria Orn. I acted on behalf of Mrs. Orn between 1993 and 1996. From 1996 until her death, on the 30^th of July 2001, I had no contact with Mrs. Orn.

On the 8^th of July 2001, 22 days prior to her death and while she was in the hospital Mrs. Orn executed a will, in which she left me a legacy of $5,000.00.

. . .

Mr. Odishaw advises in a letter dated the 4^th of April 2002, that prior to her very Last Will end Testament of the 8^th of July 2001, I was not mentioned in any of her previous wills. . . .

Upon learning that I was named as a beneficiary of Mrs. Orn's estate, I immediately on the same day advised my supervisor, [Kevin Elkin] . . ., in an e-mail dated the 24^th of August 2001. . . . [Mr. Elkin] referred me to John Gowdy, who provided me with advice . . . . [Advice received from Gowdy included the following directions from Mr. Pierre Lapointe]:

As you can see John, accepting a bequest from a deceased client or being named in a will are not situations that contravene to the Code. This being said the employee must, however, comply with section 7 of the Portfolio "Directives for employees regarding client's wills and estates".

This Section reads as follows:

Situations where an employee has been named as a beneficiary in a clients will must be immediately reported to the "designated official" as stipulated in the Conflict of Interest and Post-Employment Policy, i.e. the Deputy Minister. The appropriate Conflict of Interest process will be followed.

For your information, these Directives are available on Acrobat under Veteran/Client Programs. One other thing, the designated official is the DGHR and not the DM.

Should you have any questions, please give me a call.

Having received the above advice, I complied with the same that is to say I filed a confidential report concerning the bequest on the 12^th of September 2001,

. . .

On the 11^th of January 2002, I received the above-mentioned decision from Mr. Fenety, the Director General of Human Resources Division. . . . I am grieving the decision of Mr. Fenety, which orders me to decline the bequest from Mrs. Orn. I wish to advise you that on the 1st of February 2002, I returned a cheque dated the 11^th of February 2002 in the amount of $ 5,000.00 that I had received from the Estate of Mrs. Orn. Mr. Odishaw has kindly agreed to keep the funds in the estate account pending the outcome of my grievance.

[9]    The employer's first decision with respect to the bequest from Mrs. Orn is contained in a letter dated January 11, 2002, from Mr. Fenety, which reads as follows:

Dear Mr. Assh:

Further to my letter dated December 14, 2001, I am writing in response to the Confidential Report you completed on September 13, 2001. On[c]e again, I wish to apologize for the delay in responding to you but as I mentioned previously, your particular situation was complex and warranted a careful review.

I have examined your Confidential Report and have come to the conclusion that accepting the bequest from the estate of Mrs. Orn, a deceased Veterans Affairs Canada's client, would contravene the Conflict of Interest and Post-Employment Code for the Public Service. This conclusion is based on, but not limited to, the following:

1. Between 1993 and 1996, as part of your duties of a Pensions Advocate, you assisted Mrs. Orn with an application for a widow's pension for which you were fully compensated in the form of pay and benefits;

2. The object of the Conflict of Interest and Post-Employment Code for the Public Service is to enhance public confidence in the integrity of employees and Public Service. Under the Code, employees are responsible for taking such action as is necessary to prevent, real, potential or apparent conflict of interest. Section 6a) of the Code also stipulates that employees shall perform their official duties and arrange their private affairs in such manner that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced. Furthermore, section 6b) states that employees have an obligation to act in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law.

   In light of these provisions, if the public becomes aware that a bequest was accepted, public perception for the integrity of the Public Service may be tarnished and its confidence in the Public Service diminished. Consequently, employees must not only, in fact, act with integrity, the public perception must be that they act with integrity;

3. With respect to the acceptance of gifts, section 6e) stipulates that employees shall not solicit or accept transfers of economic benefit, other than incidental gifts, customary hospitality or other benefits of nominal value, unless the transfer is pursuant to an enforceable contract or property right of the employee. The value of the bequest is well in excess of what can reasonably be described as a gift of nominal value. Section 28 of the Code defines further the conditions for accepting benefits by stipulating that acceptance is permitted if the gift or benefit:

1. is within the bonds of property [sic], a normal expression of courtesy or protocol or within the normal standards of hospitality;

2. is not such as to bring suspicion on the office holder's objectivity and impartiality; and

3. would not compromise the integrity of the Government.

Accepting a bequest of $5000 cannot reasonably be considered as a normal expression of courtesy. Acceptance by Public Servants of gifts or bequests from clients may raise some suspicion and result in the public view that preferential services may be available for a price, thus compromising the integrity of the Government. The public must accept that a Public Servant will provide equal services to all.

As a result of the above-mentioned reasons and by virtue of my authority under the Code, I must direct you to decline the bequest. In the event you have received the bequeathed amount of $5000, you are required to immediately return the full amount to the Executor of the Estate. Please advise me in writing that you have complied with this direction.

Should you disagree with these compliance measures, you have the right to present a grievance in accordance with Section 32 of the Conflict of Interest and post-Employment Code for the Public Service.

If you require any further clarification concerning this matter, please contact Pierre Lapointe, Portfolio Consultant, Staff Relations, at (902) 566-8375.

In closing, I would like to commend your honesty, integrity and professionalism for reporting this bequest to me.

Sincerely,

Dan Fenety
Director General
Human Resources [Veterans Affairs Canada]

[10]    This decision by Mr. Fenety was upheld at all subsequent levels of the grievance process.

[11]    Mr. MacLeod was the decision-maker at the third step of the grievance process. He testified that the employer was satisfied that the grievor conducted himself properly at all material times and his conduct or integrity was not in any way at issue. The employer's concern was the amount of the bequest and the effect it may have upon the public's perception of the federal public service.

Arguments

The position of the grievor

[12]    The grievor argued that the Conflict of Interest and Post-Employment Code for the Public Service did not apply. The Code speaks of client in the present tense, whereas Mrs. Orn had ceased to be a client in 1996. In this regard, the grievor also relied upon the fact he had had no contact with the client since that date and the fact that he had first been named as a beneficiary in Mrs. Orn's will dated July 8, 2001.

[13]    In the alternative, should the Code apply, the grievor's position was that the provisions had been incorrectly interpreted and applied to the facts of his case. Firstly, the grievor argued he fell within the exception to the Code contained in section 6(e) because the bequest under the will became an enforceable property right upon Mrs. Orn's death. Secondly, section 6 had to be read in the context of section 27 and accordingly must have the potential of influencing him in the exercise of his duties. Because he had concluded his work for Mrs. Orn some five years before the bequest was made, there was no potential that the bequest would or could influence him in the exercise of his judgement and/or the performance of his duties and responsibilities. Thirdly, section 28 expands section 27 and in that regard, the facts of this case are not such as to bring suspicion on his objectivity and impartiality or compromise the integrity of the government because he had no interaction with the Testatrix after concluding the work for her (the bequest having been made some five years after his last dealings with her), and he had no knowledge of the bequest until sometime after her death. Accordingly, the employer erred in concluding either that there was a conflict of interest or that there could be a perception of a conflict of interest.

[14]    Lastly, the grievor relied on the more specific situation of the Testatrix. She was a 91-year-old woman with no surviving spouse and with no children. Given those facts, he argued the public would not find it offensive that she made a bequest to a public servant who had assisted her in the past. In support of his position, the grievor referred to the Supreme Court of Canada's decision in the political activity case [Ontario Public Service Employees' Union, Marie Wilkinson, Edward E. Faulknor and Russell B. Smith v. Attorney General for Ontario et al., [1987] 2 S.C.R. 2] regarding the individual rights of public servants, notwithstanding the scrutiny their role brings to bear upon them.

[15]    With respect to the issue of jurisdiction, the grievor submitted a twofold argument. Firstly, the federal government has no right to interfere with bequests in a will because inheritance and testamentary issues fall within the jurisdiction of the provinces. Secondly, the facts of this case fall squarely within the provisions of the Act because discipline, or at least a disciplinary inquiry, would have resulted had the grievor accepted the bequest, and because the employer's decision had an adverse financial effect upon him. To limit the interpretation of the legislation by requiring the grievor to first place himself at risk for discipline before this Board so that it, in turn, would be entitled to review the issue would be impractical and ludicrous because, either way, the issues remain the same.

The position of the employer

[16]    Counsel for the employer accepted the fact that Mrs. Orn had ceased to be a client; however, he maintained that the fact was not relevant because the Code is not limited in its application only to current or prospective clients. He argued that it was clear the Code applied because the grievor reported the matter. What is relevant is the fact that the only contact the grievor had with the Testatrix was in her capacity as his client.

[17]    With respect to the reasonableness of the employer's decision to prohibit the grievor from accepting the bequest, counsel agreed the Code must be considered in its entirety. For example, by concluding the Code did not apply because there was no possible potential that the bequest would influence the grievor, a provision such as section 28 would not be taken into account. If one considers section 28, one would appreciate the fact that other factors were meant to be considered. Those factors include the size and propriety of the gift and the integrity of the government as a whole.

[18]    In deference to the grievor, counsel for the employer made it clear the employer was not questioning his integrity. The overriding concern related to two clear facts: the grievor did nothing more than fulfill his duty toward the Testatrix, for which he was compensated by his salary; secondly, the nature of his work is to provide advocacy services to vulnerable people.

[19]    Accordingly, while accepting the fact the grievor conducted himself above reproach throughout, the employer's concern is with the message this situation would send to veterans and the public - that receipt of good work by advocates must be rewarded. The emphasis is upon the perception of the public service at large.

[20]    With respect to the issue of jurisdiction, counsel for the employer's position is that the proper avenue of review lies with the Federal Court of Canada. The provisions of the Act are clear. Sections 91 and 92 limit the jurisdiction of the Board to consider terms and conditions of employment where decisions result in discipline and financial penalty. Neither jurisdictional ground is present in this case. Counsel relied upon the Foreman case (paragraph 16), infra, and noted in that case that the issue was discipline and did not include interpretation of the collective agreement. The 'work now, grieve later' approach has no application to this situation where the issue is the interpretation of the Code formulated pursuant to the Financial Administration Act.

[21]    Counsel argued the onus was on the grievor to demonstrate that the prerequisites of discipline and financial penalty exist in this case to establish the jurisdiction of this Board. He also opined that while a bequest has a financial consequence, the loss thereof is not a financial penalty.

[22]    With respect to the grievor's argument regarding testamentary matters being within the exclusive domain of the provinces, counsel relied upon the federal government's exclusive jurisdiction to regulate the terms of employment of federal employees. In his opinion, that was what the Conflict of Interest and Post-Employment Code did. It did not invalidate the Testatrix's will; it merely precluded the grievor from accepting a bequest thereunder.

Issues

[23]   

1. Does the Public Service Staff Relations Board have the requisite jurisdiction, pursuant to sections 91 and 92 of the Act, to review the employer's direction to the grievor that prohibits him from accepting the bequest made by Mrs. Orn in her will.

2. If the Public Service Staff Relations Board has the requisite jurisdiction,

1. what is the scope of that jurisdiction;

2. how is the Conflict of Interest and Post-Employment Code to be interpreted and applied in this case;

3. is the grievor entitled to accept the bequest in issue.

Decision

Jurisdiction of the Public Service Staff Relations Board

[24]    The relevant provisions of the Act are sections 91 and 92, which read:

Right to Present Grievances

91. (1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award, or

(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a) (i) or (ii),

in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.

(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.

(3) An employee who is not included in a represented by bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.

(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.

Adjudication of Grievances

Reference to Adjudication

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

(3) Nothing in subsection (1) shall be construed or applied as permitting the referral to not grievable adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

(4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I.

[25]    The difficulty in this case arises from the language contained in section 92(1)(b) and, more specifically, whether the employer's decision, in light of the facts, falls within the meaning of "disciplinary action ... resulting in a financial penalty". The decision by the employer has certainly resulted in a financial loss, although some may say the bequest was an unexpected benefit and question whether a prohibition to accept such a benefit amounts to a penalty.

[26]    In the context of traditional arbitral jurisprudence, the decision would not be regarded as a form of specific discipline. This is so even though most practitioners in the field would acknowledge the decision has a disciplinary quality to it. That is, it is clear to all that had the grievor chosen to disregard the employer's decision, he would have been subject to discipline. Furthermore, it is also clear that had the grievor failed to advise the employer of the bequest, he may well have been subject to discipline.

[27]    It would be a simple and, indeed, an easy course to accept the straightforward argument of counsel for the employer and conclude the phrase does require that discipline be imposed and that the discipline resulted in a traditional financial penalty to the employee such as loss of pay, or the payment of a sum of money. However, given the facts of this case and the financial consequence to this employee, who faithfully and correctly attended to his duties and followed the correct procedure in reporting the bequest according to the directives of his employer, a full consideration of the jurisdictional issue appears warranted.

[28]    In embarking upon this consideration, I am cognizant of the constraints of jurisdiction the legislation places upon adjudicators and the courts. (See generally the comments of the Federal Court of Appeal in cases such as Vaughan v. Canada [2003] F.C.J. No. 241, 2003 FCA 76, (beginning at paragraph 15 and including a discussion of the Supreme Court of Canada's decision in the Ocean Port Hotel case, 2001 SCC 52)) At paragraph 19, the Federal Court of Appeal stated:

The intent of Parliament is clear. Based upon the ambit of the statutory scheme and the nature of the dispute (being related to employment issues), section 91 of the PSSRA is the exclusive route. Section 91 is engaged and could have been resorted to by the Appellant, and judicial review under section 18.1 of the Federal Court Act ...would have been available. While the statutory scheme may oust the jurisdiction of the courts to entertain the claim it does not oust the supervisory jurisdiction of this Court on judicial review. In particular, questions of procedural fairness can be addressed as of right in judicial review of the decision-maker's decision.

[29]    If the rights of an employee have been exhausted at the final grievance level, the only right a grievor has to question that final decision is through an application for judicial review.

[30]    Turning back to the Act, section 96 (3) is significant. It provides:

96. (3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.

[31]    Another relevant section is section 21(1), which states:

Duties and Powers of the Board

21. (1) The Board shall administer this Act and exercise such powers and perform such duties as are conferred or imposed on it by, or as may be incidental to the attainment of the objects of, this Act including, without restricting the foregoing, the making of orders requiring compliance with this Act, with any regulation made hereunder or with any decision made in respect of a matter coming before it.

(Section 96.1 provides adjudicators acting under section 92 shall have all the powers of the Board, except those relating to making regulations.)

[32]    Can the utilization of a broad interpretation of the phrases in issue in section 92(1)(b) of the Act stand on its own as providing the requisite jurisdiction? Alternatively, or in conjunction with the foregoing question, can the Board be said to be "exercis[ing] such powers and perform[ing] such duties as are conferred or imposed on [the Board] by, or as may be incidental to the attainment of the objects of, this Act"?

[33]    Section 92 does not specifically state an employee must have been disciplined. The phrase "disciplinary action" is used and, accordingly, we should determine what the meaning of that phrase is. The first rule of construction is that words used are to be given their plain and ordinary meaning. The Random House Dictionary defines disciplinary as "of, for, or constituting discipline; promoting discipline." It then defines discipline as:

1. training to act in accordance with rules; drill: military discipline. 2. instruction and exercise designed to train to proper conduct or action ... . 3. punishment inflicted by way of correction and training. 4. the training effect of experience, adversity, etc.: the harsh discipline of poverty. 5. behaviour in accordance with rules of conduct; behaviour and order maintained by training and control: good discipline in an army. 6. a set or system of rules and regulations. ...

[34]    Penalty is defined in the Random House Dictionary as:

1. a punishment imposed or incurred for a violation of law or rule. 2. a loss, forfeiture, suffering or the like, to which a person subjects himself by non-fulfillment of some obligation. 3. something that is forfeited, as a sum of money. 4. consequence or disadvantage attached to any action, condition, etc. ...

[35]    Based upon those definitions, one could say the language relating to jurisdiction of the Board contained in section 92 allows for a broad interpretation. That is, it permits the conclusion that the employer's decision, in which acceptance of the bequest would be a violation of the conflict of interest policy, has a disciplinary connotation and hence can be said to be a "disciplinary action". One may also conclude that the disciplinary action resulted in "a financial penalty" because the grievor was required to forfeit, or because he lost, a sum of money to which he would otherwise be entitled. It can also be said that the Code is a set of rules of behaviour for public employees, which have been considered necessary to maintain an appropriate degree of integrity and respect - or discipline, in the ranks of the public servants, for the employer, and by necessary implication for the government of the day.

[36]    The question we must then address is whether there may be reasons to accept this broad approach, or alternatively, to follow the more conservative approach that counsel for the employer argued was the correct one.

[37]    The Board considered the issue of 'disguised discipline' in Smith v. Treasury Board (External Affairs Canada), PSSRB File No. 166-2-19902 (1991), Foreman v. Treasury Board (Indian and Northern Affairs Canada), 2003 PSSRB 73, and Cochrane v. Treasury Board (Health Canada), 2001 PSSRB 129.

[38]    In the Foreman case, it was argued that actions taken by the employer to end the grievor's acting assignment and to allow a closed competition to expire, constituted disguised discipline that resulted in a financial penalty. In his decision, Chairperson Yvon Tarte discussed the Board's jurisdiction under section 92 and the issue of disguised discipline in paragraphs 16 to 18, in the following manner:

[16]    Under section 92 of the PSSRA, the jurisdiction of an adjudicator is fairly limited and cannot be expanded, even with the consent of the parties. In accordance with section 92, the jurisdiction of an adjudicator is limited to the interpretation or application of a collective agreement on one hand, and termination of employment and certain disciplinary actions on the other hand. The bargaining agent has not alleged any violation of the collective agreement applicable to the grievor. Rather, it has alleged that the actions taken by the employer (i.e. it's failure to renew the grievor's acting assignment and it's decision to allow the eligibility list to expire) constitute disguised discipline resulting in a financial penalty and termination.

[17]    In my view, the actions (or inactions) of the employer do not constitute "termination" or "disciplinary action" under section 92 of the PSSRA. With regard to his claim regarding the non-renewal of his acting assignment, Mr. Foreman's appointment was for a specified term and that term came to an end. Pursuant to section 25 of the PSEA, the grievor ceased to be an employee upon the expiration of that term. There is ample legal precedent for maintaining that the termination of a term appointment does not constitute dismissal. The PSSRB's jurisprudence deals with terminations of employment at the expiration of a term in Marinos (Board file 166-2-27446), Hanna (Board file 166-2-26983), Blackman (Board file 166-2-27134), Lecompte (Board file 166-2-28452) and Dansereau v. National Film Board and Pierre-Andre Lachapelle, [1979] 1 F.C. 100 (F.C.A.). In Dansereau, the Federal Court of Appeal, at pages 101 and 102 held that:

An employee hired for a specified period is not laid off when his or her period of employment expires, since the reason for cessation of employment at that moment is not the lack of work, but the terms and conditions of the employment contract itself.

[18]    I believe that this decision applies to the present case as well.

[39]    In the Smith case, Board Member R. Young concluded that the withdrawal of a bilingual bonus from the grievor's pay was not disciplinary. The focus of Board Member Young in determining the issue lay in distinguishing between action taken as a result of involuntary conduct as opposed to action taken as a result of voluntary conduct or misfeasance. Relying upon an analysis by Chief Adjudicator Joliffe in Robertson, Board File 166-2-454, at pages 14 to 17, Board Member Young concluded:

Therefore, having found no grounds upon which the employer could have disciplined the grievor and accepting the grievor's evidence that he did not fail his language test in order to attract disciplinary action by the employer, I am not convinced that what was otherwise an administrative decision can be successfully clothed by the grievor in the manner of disguised discipline.

[40]    The Foreman and Smith cases are distinguishable upon the facts. Albeit both grievors ultimately suffered a negative financial consequence, neither case addressed a disciplinary issue or 'action' because the grievors in those cases were not required to meet a standard involving voluntary conduct that was related to the concepts of right and wrong, appropriate or inappropriate, or approved behaviour or disapproved behaviour.

[41]    The Cochrane case, while closer to the facts of this case, may nevertheless be distinguished on its unique facts, including the fact that the issue of the disciplinary nature of the employer's conduct was raised late in the process. Chairperson Yvon Tarte accepted the employer's evidence in that case that the decision not to reimburse the expenses incurred by the grievor, as a result of being directed to cut short the unauthorized cruise he was on and return to work, was administrative in nature and not disciplinary. It is nevertheless interesting to note that Chairperson Tarte did accept the possibility that the employer's decision may have been disciplinary.

[42]    In Vaughan v. Canada, 2003 FCA 76, Associate Justice Sexton discusses the jurisdictional criteria established by the Supreme Court of Canada. The most relevant portions of that discussion are as follow:

¶ 7      To determine whether the PSSRA scheme ousts the jurisdiction of the Court in this case, this Court must refer to the criteria outlined by the Supreme Court of Canada in Weber and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360 ["Regina Police Association"]. As stated above, the Supreme Court of Canada has adopted the exclusive jurisdiction model as the test for determining if Parliament has ousted the jurisdiction of the Court. The criteria for the application of this model focuses on the central nature of the dispute and either the interpretation of the collective agreement in situations where the collective agreement governs, or, as here, the interpretation of the statutory scheme.

¶ 8      In Weber, the Court considered the interpretation of a collective agreement. McLachlin J. (as she then was) for the majority stressed the following:

On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

In considering the dispute, the decision-maker must attempt to define its "essential character". ...The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement. [para. 51 and 52]

McLachlin J. (as she then was) also stressed at para. 57 that:

It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case the courts of inherent jurisdiction in each province may take jurisdiction. What must be avoided ...is a "real deprivation of ultimate remedy".

¶ 9      The task for determining the appropriate forum in Weber centred on whether the dispute or difference between the parties arose out of the collective agreement. McLachlin J. stated at para. 51 that "two elements must be considered: the dispute and the ambit of the collective agreement". She did not state that whether the party has access to an independent adjudicator is an important consideration in applying this test. As correctly stated by Heneghan J. when applying Weber at para. 28 in the decision below in our case:

...if the essential character of the dispute arises under the collective agreement, then the arbitrator shall have exclusive jurisdiction over the dispute, as provided for by the legislation. Disputes that expressly or inferentially arise out of the collective agreement are thus precluded from being litigated in the courts.

Therefore, the relevant considerations according to Weber are the nature of the dispute and the ambit of the relevant collective agreement.

¶ 10      In Regina Police Association, the Court considered the interpretation of a statutory scheme. Bastarache J. embraced the exclusive jurisdiction model. He stated at para. 25 that, in determining whether the Court has jurisdiction,

...the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations ... If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.

¶ 11      The Court in Regina Police Association expanded the jurisdictional test from the interpretation of collective agreements to the interpretation of statutory schemes:

To summarize, the underlying rationale of the decision in Weber, supra, is to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties. The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature.

¶ 12      It should be emphasized that in the case before us, Mr. Vaughan argues that he is entitled to receive the ERI benefits under the early retirement incentive program, which arise from regulation and not from the collective agreement. The dispute, therefore, involves the interpretation or application of a regulation, The Retirement Compensation Arrangements Regulations, No.2, S.O.R. 95-169 (Reg. No. 2) under the Special Retirement Arrangements Act, 1992 S.C., c. 46, Sch. 1, and, thus, falls under the ambit of section 91(1) of the PSSRA.

. . .

¶ 14       The key question in this case is whether the essential character of the ERI dispute, in its factual context, arises expressly or inferentially from a statutory scheme. The character of the dispute is rooted in the employment relationship as it relates to retirement benefits. The dispute at hand in Mr. Vaughan's case, involves the interpretation of a regulation which is caught by section 91(1)(a)(i) and thus arises from the statutory scheme contained in section 91(1)(a)(i) of the PSSRA. This Court in PSAC and Johnson-Paquette has already determined that once the essential nature of the dispute is found to arise under section 91(1)(a)(i), then the jurisdiction of the Court is ousted. Therefore, the jurisdiction of the Court is ousted in this case.

[43]    In the Vaughan case, the Federal Court of Appeal concluded that the appellant, a former federal employee seeking early retirement incentive benefits under a federal statute and regulation, was not entitled to pursue his claim in the federal court, but rather was obliged to follow the procedure set out in paragraph 91 of the Act because the legislation ousted the jurisdiction of the court.

[44]    In the case at hand, the character of the dispute is rooted in the employment relationship as it relates to the acceptable conduct of employees as outlined in the Code drawn pursuant to the Financial Administration Act. Furthermore, there can be no doubt that breaches of the Code are subject to discipline by the employer. Clearly then, the essential character of the dispute arises under section 91 of the Act. The question then remains as to whether Parliament intended that the review process stop at the third level of the grievance process, subject of course to judicial review by the court, or alternatively, whether Parliament intended that an adjudicator, pursuant to the Act, have jurisdiction to address the issue.

[45]    It appears clear that the facts relied upon by the employer's decision-makers in this case were too limited. It is clear the employer failed to consider there were no existing natural objects for the testatrix's beneficence, that he placed an overly high degree of significance upon the $ 5,000 bequest to the grievor given the value of her estate and the absence of family and dependents, that the grievor was not in a position to make a decision that would directly benefit the Testatrix at any time, that five years had elapsed since he had last had contact with her at all, and that the grievor had no knowledge of the bequest or a proposed bequest until after the Testatrix had died.

[46]    Furthermore, while accepting that care must always be taken to avoid even the impression of public servants having any conflict of interest with respect to the work they engage in, the employer, while correctly motivated, may have erred in failing to consider whether acceptance of this bequest by the grievor was a conflict of interest at all, or within the framework of the Code.

[47]    The grievor was not challenging the employer's right to impose rules relating to conflict of interest, nor was he challenging the actual policy or code. He was simply challenging the employer's interpretation and application of the code to the particular case at hand. In essence, the issue is based on the employment relationship and the application of specific rules of conduct to an employee given a specific set of facts. This is exactly the kind of issue labour arbitrators deal with on a regular and frequent basis. However, I understand that these facts alone do not provide an adjudicator with the requisite jurisdiction.

[48]    It is the purpose of the Code, and the potential for what would have occurred had the grievor not followed the direction of the employer, that differentiates this case from others. As stated earlier, had the grievor elected to disregard the direction to return the bequest, his conduct would have been viewed as wrong, he would have most likely been disciplined, and his insistence upon his right to retain the bequest would most likely have resulted in the termination of his employment, or at the very least, a suspension. In this regard, section 33 under part II of the Code is clear in stating the ramifications of non-compliance:

33. An employee who does not comply with the measures described in Parts I and II is subject to appropriate disciplinary action up to and including discharge.

[49]    Furthermore, section 32 provides:

32. Where an employee and the designated official disagree with respect to the appropriate arrangements necessary to achieve compliance with the Code, the disagreement shall be resolved through the established grievance procedures.

[50]    Would it further the interest of the Public Service Staff Relations Act to construe the language of section 92 narrowly and thus create a precedent that may encourage employees to incur discipline first, rather than follow directives and then challenge them? The latter approach is contrary to the well-established and honoured labour principle of 'work first, grieve later'. That principle is of benefit to employers because it ensures work continues, thus enhancing productivity and minimizing financial losses. On infrequent occasions, such as this one, why should it not be regarded as a valid basis for permitting employees the benefit of entitlement to the further step in the grievance process of an adjudicative hearing before a member of the Public Service Staff Relations Board?

[51]    Granted, the specific language of section 92 precludes every such issue from coming before the Board. The language clearly contemplates that it is only decisions of sufficient import by reason of negative financial consequences that may proceed before the Board.

[52]    Returning to the general rules of construction and interpretation, it is significant that an exception to the rule that the ordinary meaning of words shall apply occurs when the ordinary interpretation leads to an absurd result, or a result which is inconsistent with the legislation as a whole.

[53]    Is it reasonable to conclude that Parliament intended that the phrases in issue be given a narrow interpretation? If so, the decision of the employer would stand, unless the grievor brought a motion for judicial review before the Federal Court. Is the Federal Court the appropriate venue for consideration of what is fundamentally a regular and routine labour dispute - albeit one where the employer is the federal government?

[54]    At the trial level of Johnson-Paquette v. Canada, [1998] F.C.J. No. 1741, Court File No. T-165-98, the Federal Court concluded it was without jurisdiction to hear a claim in tort against the federal government employer because the plaintiff had not exhausted the grievance procedure under the Act and her resulting rights of judicial review. The Federal Court of Appeal upheld the conclusion. In paragraph 7 of his decision ([2000] F.C.J. No. 441, Court File No. A-729-98) Justice Noel, commenting on the Weber decision, stated:

... the language of the relevant provision in Weber was one of three self standing grounds which led the Supreme Court to conclude that concurrent proceedings were not available, the other two being that:

(1) labour relations legislation provides a code governing all aspects of labour relations which would be undermined by the availability of a concurrent forum to which the legislature has not assigned the task of dealing with such matters;

(2) the availability of concurrent forums would undercut the regime of exclusive arbitration which lies at the heart of all Canadian Labour Statutes, and impede the quick and economical resolution of labour disputes.

[55]    Then he went on, at paragraphs 8 to 11, as follows:

Both of these policy considerations are extant and applicable to the labour dispute resolution processes provided for under the PSSRA. Furthermore, with respect of the absence of exclusionary language in the PSSRA, the Supreme Court, in Gendron v. Supply and Services Union of Public Services Alliance of Canada, Local 50052, ... with respect of a similar omission under the Canada Labour Code, stated:

While the legislation does not expressly provide that the Board has exclusive jurisdiction, it indicates that Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As noted earlier, Parliament has provided the duty, the procedure for adjudicating an alleged breach, a wide array of remedies and a privative clause protecting the Board. It can be therefore assumed to have intended that the ordinary courts would have but a small role if any to play in the determination of disputes covered by statute.

. . .

Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, in this case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated processes final and binding upon those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts.

Section 17(1) of the Federal Court Act provides the trial division of this Court with jurisdiction in all cases where relief is claimed against the Crown "except as otherwise provided in this Act or any other Act".

[56]    Subsequently, in Public Service Alliance of Canada v. Canada (Treasury Board), 2002 FCA 239, Chief Justice Richard, delivered an oral decision, and stated:

¶ 3   As noted by the application judge, the comprehensiveness of the PSSRA scheme for the resolution of employment-related disputes between employee of the federal public service and their employer has been affirmed by this Court in Johnson-Paquette v. Canada, [2000] 253 N.R. 305, [2000] F.C.J. no. 441 (C.A.).

[57]    While the Federal Court of Appeal has noted that the issue of fairness can be addressed in the context of a judicial review (Vaughan v. Canada), in my opinion, the more appropriate forum for further consideration of this decision made at the final step of this grievance process is the forum created to address significant disciplinary issues having a component of financial loss, as this issue is. That forum is an adjudication hearing under sections 91 and 92 of the Public Service Staff Relations Act. A broad interpretation of the phrase "disciplinary action ...resulting in financial penalty" in section 92, alone or in conjunction with section 21(1), in my opinion, provides the requisite jurisdiction. I also draw support for this conclusion from paragraph 39 of the Supreme Court of Canada in the Regina Police Association case, [2000] 1 S.C.R. 360, where Justice Bastarache stated "a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature". (Sexton, JA developed this argument and relied upon it in Vaughan v. Canada.)

[58]    See also Associate Justice Sexton's decision in Vaughan at paragraphs 14 to 17. In paragraph 14, he concluded that the essential nature of the dispute before him arose under section 91(1)(a)(i) of the PSSRA and, therefore, the jurisdiction of the Court was ousted. Then at paragraph 17, relying upon the Supreme Court decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), supra, he concluded:

The fact the legislation does not provide for an independent adjudicator is not a factor to consider in determining Parliament's intention. Examination of the legislation itself, along with the nature of the dispute itself are the determining factors.

[59]    In the case at hand, once again I emphasize, my conclusion that the Board has the requisite jurisdiction in this case is not founded only upon the nature of the dispute falling within the parameters of section 91 of the Act. I have also concluded that the jurisdictional requirement for a hearing before an adjudicator contained in section 92(1)(b)(i) has also been met, having found the grievor has been subject to "disciplinary action resulting in a financial penalty" .

The Scope of the Public Service Staff Relations Board

[60]    In concluding that an adjudicator under the Act does have jurisdiction to hear this case, I remain conscious that the role of arbitrators and adjudicators is not to manage the workplace, and so indeed, a review of this matter would not be simply a rehearing allowing an adjudicator to substitute his or her view of what the decision should have been. It is not our prerogative to manage the work place. However, it is our function to uphold the rights of employees, including the most fundamental right of fair treatment.

[61]    Fair treatment includes the concept that decision-makers take into account all the relevant facts pertaining to an issue, that they do not take into account irrelevant facts, and that they apply their policies and codes of conduct in a fair and reasonable fashion.

Interpretation and application of the Conflict of Interest and Post-Employment Code to the facts

[62]    The employer, the Treasury Board of Canada, has created the Conflict of Interest and Post-Employment Code for the Public Service. The Code contains fifty sections and a schedule. While the objectives of the Code may be readily understood, the application of its provisions to specific situations is not so readily apparent. Nevertheless, as stated earlier, section 33 under part II of the Code is clear in stating the ramifications of non-compliance:

33. An employee who does not comply with the measures described in Parts I and II is subject to appropriate disciplinary action up to and including discharge.

[63]    Part I deals with 'principles and administration', while part II addresses 'conflict of interest compliance measures'. Both parts apply to the grievor.

[64]    Sections 4, 5 and 6 of the Code address the objects, the application, and the principles of the Code, while sections 7 and 8 address certification and review thereunder. These sections read as follow:

PART I

PRINCIPLES AND ADMINISTRATION

Objects

4. The objects of the Code are to enhance public confidence in the integrity of employees and the Public Service:

(a) while encouraging experienced and competent persons to seek and accept public office;

(b) while facilitating interchange between the private and the public sector;

(c) by establishing clear rules of conduct respecting conflict of interest for, and post-employment practices applicable to, all employees; and

(d) by minimizing the possibility of conflicts arising between the private interests and public service duties of employees and providing for the resolution of such conflicts in the public interest should they arise.

Application

5. In keeping with the principles described below, each employee is responsible for taking such action as is necessary to prevent real, potential or apparent conflicts of interest. The employee is also required to observe any specific conduct requirements contained in the statutes governing his or her particular department and the relevant provisions of legislation of more general application such as the Criminal Code, the Canadian Human Rights Act, the Privacy Act, the Financial Administration Act and the Public Service Employment Act.

Principles

6. Every employee shall conform to the following principles:

(a) employees shall perform their official duties and arrange their private affairs in such a manner that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced;

(b) employees have an obligation to act in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law;

(c) employees shall not have private interests, other than those permitted pursuant to this Code, that would be affected particularly or significantly by government actions in which they participate;

(d) on appointment to office, and thereafter, employees shall arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising, but if such a conflict does arise between the private interests of an employee and the official duties and responsibilities of that employee, the conflict shall be resolved in favour of the public interest;

(e) employees shall not solicit or accept transfers of economic benefit, other than incidental gifts, customary hospitality, or other benefits of nominal value, unless the transfer is pursuant to an enforceable contract or property right of the employee;

(f) employees shall not step out of their official roles to assist private entities or persons in their dealings with the government where this would result in preferential treatment to any person;

(g) employees shall not knowingly take advantage of, or benefit from, information that is obtained in the course of their official duties and responsibilities and that is not generally available to the public;

(h) 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;

and

(i) employees shall not act, after they leave public office, in such a manner as to take improper advantage of their previous office.

Certification Document

7. Before or upon appointment, employees must sign a document certifying that they have read and understood this Code and that, as a condition of employment, they will observe this Code. Employees appointed prior to the coming into force of this Code shall sign the document not later than January I, 1986.

Annual Review

8. All employees are required to review their obligations under the Code at least once a year.

[65]    The relevant section under part I is section 6(e) as set out above. Under part II, the relevant sections are 27 to 29, which read:

Gifts, Hospitality and Other Benefits

27.   Gifts, hospitality or other benefits that could influence employees in their judgement and performance of official duties and responsibilities must be declined. Employees must not accept, directly or indirectly, any gifts, hospitality or other benefits that are offered by persons, groups or organizations having dealings with the government.

28.   Notwithstanding, acceptance of offers of incidental gifts, hospitality or other benefits arising out of activities associated with the performance of their official duties and responsibilities is not prohibited if such gifts, hospitality or other benefits:

(a) are within the bounds of propriety, a normal expression of courtesy or within the normal standards of hospitality;

(b) are not such as to bring suspicion on the employee's objectivity and impartiality; and

(c) would not compromise the integrity of the government.

29.   Where it is impossible to decline unauthorized gifts, hospitality or other benefits, employees must immediately report the matter to the designated official. The designated official may require that a gift of this nature be retained by the department or be disposed of for charitable purposes.

[66]    Section 6(e) prohibits the solicitation or acceptance of transfers of economic benefit, unless the transfer is pursuant to an enforceable contract or property right of the employee. However, in so stating, it also acknowledges that "incidental gifts, customary hospitality, or other benefits of nominal value", either are or may be acceptable. That issue is more specifically addressed in section 28. There is a problem in that the exception language used in section 6(e) differs from the language used in section 28. Section 6(e) would appear to preclude an employee, such as the grievor, from accepting a benefit that was of more than nominal value. I am not prepared to find that $ 5,000.00 is of nominal value in this case. Nevertheless, that may be immaterial because upon the death of the Testatrix, the bequest became an enforceable property right of the grievor, and the transfer of the $ 5,000.00 to the grievor would be pursuant thereto.

[67]    Addressing section 27, because the benefit takes effect only upon the death of the Testatrix and the grievor had no previous knowledge of the bequest, I find the bequest could not influence the grievor in his judgement and performance of duties and responsibilities. Furthermore, the Testatrix would not after her death be having any dealings with the government, and there was no evidence or suggestion that her estate would be.

[68]    Turning now to section 28 and the specific facts, the sum of money involved is $ 5,000.00. Section 28 allows for the acceptance of "gifts ... or other benefits" provided the three preconditions in subsections (a), (b) and (c) have been met. There is no doubt the amount itself takes the bequest outside a normal expression of courtesy and outside the normal standards of hospitality as contemplated in section 28 (a). However, section 28(a) contains the disjunctive "or" and, accordingly, as long as the bequest falls within one of the three descriptive phrases therein, the requirement of section 28(a) will be met. Taking into account the fact that the sum of money was a bequest, a number of factors must be considered in determining whether the sum of $ 5,000.00 is "within the bounds of propriety". Before addressing that issue, however, it is expedient to review the bequest in light of sections 28(b) and (c).

[69]    Section 28(b) requires the bequest "not be such as to bring suspicion on the employee's objectivity and impartiality". The bequest only takes effect upon the death of the Testatrix. At that point, there is no evidence, or even a suggestion, that the grievor would be in a position to act, in the course of his employment, in a manner that would benefit the Testatrix, or some other person at her behest. While the employer's position was that a person such as the Testatrix, once having been a client of the grievor and the Department, remains a client for all time may be correct under these circumstances; nevertheless, it is material and significant that the grievor last provided services to the Testatrix in 1996, some five years before she made her will, and has had no contact with her since that date. It is also significant that the grievor had not been a beneficiary in any previous will, that he was named as a beneficiary in her will made on July 8, 2001, and that he was not aware of this fact until the Testatrix's solicitor and executor advised him of the fact in a telephone call on August 24, 2001. Based upon the foregoing, I have concluded that the nature of the bequest, including the date it was made and the fact the grievor had long before concluded his work for the Testatrix, had closed her file, and had had no contact with her since closing the file, are not such as to bring suspicion on the grievor's objectivity and impartiality. Therefore, the precondition contained in section 28(b) has been met.

[70]    Section 28(c) requires the bequest "would not compromise the integrity of the government". Relying once again upon all of the facts discussed in the preceding paragraph, I have concluded that the bequest would not compromise the integrity of the government and accordingly, the precondition contained in section 28(c) has been met. In this regard, I have considered the Supreme Court of Canada's decisions in Neil Fraser v. Public Service Staff Relations Board [1985] 2 S.C.R. 455 and Ontario Public Service Employees' Union, Marie Wilkinson, Edward E. Faulknor and Russell B. Smith v. Attorney General for Ontario et al., 41 D.L.R. (4th) 1, with respect to balancing the rights of public servants as individuals with necessary infringements of those rights because of the nature of their employment.

[71]    In the Fraser case, Chief Justice Dickson began his judgment at page 457, in the following manner:

Does an adjudicator err in law, for the purpose of s.28 of the Federal Court Act ... when he or she confirms the discharge of a federal public servant who expresses views highly critical of the Government? Central to that issue is the proper legal balance between (i) the rights of an individual, as a member of the Canadian democratic community, to speak freely and without inhibition on important public issues and (ii) the duty of an individual, qua federal public servant, to fulfil properly his or her functions as an employee of the Government of Canada.

[72]    Essentially the Supreme Court found that the fundamental rights of individuals who serve in the public service should not be limited arbitrarily, while at the same time recognizing that the nature of the public service does impose some restrictions upon them that are justified by "the public interest in both the actual, and apparent, impartiality of the public service". (See Fraser at page 470.)

[73]    Turning now to whether the bequest meets the remaining precondition in section 28(a) of being "within the bounds of propriety", the starting point has to be the nature of the 'gift' or the 'benefit'. Because we are dealing with a testamentary bequest, the amount of the bequest in and of itself is not as significant. The significance of the amount should be weighed in relation to relevant matters such as the size of the estate; the reasonableness of the overall bequests in terms of amounts, dependents and potential dependents; legal rights or challenges; and, the natural or anticipated objects of the Testatrix's affection. While I do not have a list of the assets of the estate, given the bequests contained in the will, it is reasonable to assume the estate is of sufficient substance to render the bequest to the grievor as being within the bounds of propriety, and hence meeting the requirement of section 28(a). The sum is not overwhelming and it appears reasonable given the scope of the beneficiaries named in the will. The Testatrix's spouse predeceased her and she had no children. The Testatrix's will demonstrated an interest in providing benefits to a wide host of objects including a nephew and his wife who were to receive the sum of $ 50,000.00, a grand-niece and her spouse who were to receive 45% of the residue of the estate, charities, a library, friends, and someone such as the grievor whom she regarded with some fondness or for whom she had some appreciation. This type of will is not out of the ordinary.

[74]    My conclusions with respect to some or all of the preconditions contained in section 28 may have been quite different if the facts had indicated the grievor engaged in a course of conduct that either suggested or demonstrated he had exerted some undue influence upon the Testatrix, or otherwise engaged in some inappropriate conduct in the course of his employment or outside his employment vis-à-vis the Testatrix. It is necessary that whenever public servants are providing services to people who are or may be susceptible to the influence of others, we hold them to a high standard. I believe the employer was quite rightly concerned about the impression the general public would have upon learning that a pension advocate, being a lawyer, benefited under the will of a client. As a general principle, I, too, share a concern in this regard. However, when all the facts are considered, it was clear there was nothing wrong, or even suspicious, about the grievor's conduct in relation to the Testatrix. Furthermore, he had no expectation or knowledge that she may have been considering to benefit him through her will.

The grievor's entitlement to accept the bequest in issue

[75]    The grievor conducted himself in a commendable fashion upon receiving notice of the bequest. He considered what responsibility he had in relation to his employer, reported the matter in a timely fashion and returned the cheque to the executor when directed to do so.

[76]    Given that the Testatrix's will was not challenged and she appeared to have a clear intention to benefit specific individuals and causes, it was not unreasonable that she remembered being assisted by the grievor and wished to leave him a bequest. The appropriateness of the grievor's conduct was not questioned at any stage, and the fact that the Testatrix left him a bequest indicates she appreciated the manner in which he assisted her. Our public servants, who are carrying out their duties as expected, and in some cases providing a higher quality of service, should not arbitrarily be denied independent displays of appreciation from the public, particularly, in a case such as this one, where there was no question whether the grievor was in a position to, intentionally or unintentionally, benefit the Testatrix or act impartially toward her in the course of his employment.

[77]    In arriving at this conclusion, I have also considered that this type of occurrence does not appear to be endemic to this Department or to the employer at large. If it were, other considerations may apply.

[78]    Having addressed specific sections of the Code, including its objectives, I now step back to consider what this case is ultimately about.

[79]    A public servant performed his duties in an acceptable, if not commendable, fashion. Five years after he concluded his dealings with an elderly client, she included him in her will. It was not until one month following the client's death that the public servant first knew of the bequest. Do these facts constitute a real, potential or apparent conflict of interest? More importantly, do the facts constitute a real, potential or apparent conflict of interest under the employer's Conflict of Interest and Post-Employment Code for the Public Service?

[80]    I have concluded the answer to both of those questions is no. While I appreciate the fact that the employer's officers were quite properly endeavouring to protect the interests of the government, I find the decision reached was not fair or reasonable because it failed to take into account all the relevant facts, including the rights of the grievor as an individual, and it placed too much emphasis on the amount of the bequest without regard to its context.

[81]    Having previously concluded an Adjudicator has the jurisdiction to hear this grievance, the grievance is upheld and the grievor is entitled to accept the bequest in issue.

Francine Chad Smith, Q.C.,
Board member

DATED this 11^th day of August 2004.