FPSLREB Decisions

[1]      On May 17, 2002, Michael Brecht, an employee of Human Resources Development Canada (HRDC) in Saskatoon, received a letter suspending him indefinitely without pay (Exhibit G-14). On September 3, 2002, Mr. Brecht was terminated from his employment (see Exhibit G-6).

[2]      The letter of termination states:

You were alleged to have inappropriately released personal information contrary to Privacy legislation. The Administrative Investigation into this matter is now complete. I have noted that you have chosen not to respond to most of the questions posed by the investigators. Nevertheless, I must make a decision based on the information before me.

I find that on the balance of probabilities you did inappropriately give out personal information and as such have broken the bond of trust that is essential for employment with HRDC.

Protection of personal information is a fundamental responsibility of all public servants. Consequently, I am terminating your employment with HRDC effective close of business, today, September 3, 2002, pursuant to Section 11(2)(f) of the Financial Administration Act.

You have the right to present a grievance against my decision within 25 working days of receipt of this letter.

[3]      Mr. Brecht has grieved both the indefinite suspension and the termination and this decision refers to both.

[4]      At the outset of the hearing a request was made, and granted, for the exclusion of witnesses.

Background

[5]      Mr. Brecht commenced his employment with HRDC in Saskatoon on October 16, 2000, as an Investigation and Control Officer. Prior to commencing his work in the federal government, Mr. Brecht spent 16 years as a private investigator with Robinson Investigations in Saskatoon.

[6]      As an Investigation and Control Officer, Mr. Brecht's duties included investigating fraudulent claims for Employment Insurance. In order to perform his duties, Mr. Brecht had access to various HRDC databanks, including a social insurance number (SIN) registry. This databank shows the SIN provided to all Canadian citizens, plus other personal information, including the address of the individual at the time the SIN was issued, his or her date and place of birth and other such items.

[7]      Shortly after commencing his HRDC employment, Mr. Brecht received a document from his employer titled "Usercode Acceptable Use Policy" (Exhibit E-6). The document states, in part:

Any of the following would be considered improper use of a computer system:

.     Using system and data resources for other than
      direct support of authorized projects;

[8]      On May 13, 2002, Mr. Brecht received a telephone call at his office from the RCMP asking if they could come and meet him. Mr. Brecht thought the request concerned a common work-related investigation he was working on with the RCMP at the time.

[9]      When the RCMP spoke to Mr. Brecht, they informed him his name had surfaced in relation to an investigation they were conducting. They told Mr. Brecht he could be charged with breach of trust, illegal use of a computer, conspiracy and improper release of information in relation to the Privacy Act. The RCMP suggested Mr. Brecht retain legal counsel, and they also read him his rights.

[10]      After the RCMP left Mr. Brecht's office, he went directly to see his supervisor, Jacqueline Young, and informed her as to what had just taken place, including the possibility of being charged.

[11]      Ms. Young asked Mr. Brecht what it was all about and he replied that the only thing he could think of was he located some names and addresses for Robinson Investigations, his previous employer. He explained that Robinson Investigations was doing work for the Crown.

[12]      Ms. Young asked Mr. Brecht why he had not come to see her before he released this information and Mr. Brecht replied he should have.

[13]      It just so happened that a consultant from the regional office was in the Saskatoon office at the time these events were taking place, and Mr. Brecht asked if he could speak to both of them. The consultant, Wayne Young, came in and Mr. Brecht again explained what had taken place with the RCMP in his office. Mr. Young said the manager would have to be notified.

[14]      At that point, Ms. Young went to speak to the manager, Linda Cox, and explained the story to her. Ms. Cox called Mr. Brecht into her office and again, Mr. Brecht explained the situation and said the only thing he could think of was it related to some information he obtained from the system and subsequently supplied to his previous employer.

[15]      Mr. Brecht reiterated that the information he released was related to work Robinson Investigations was doing for the Crown.

[16]      Ms. Cox asked if this information was supplied when Mr. Brecht was an employee of HRDC and Mr. Brecht replied it was. He also said no one else was involved in the supplying of this information.

[17]      A decision was made to send Mr. Brecht home, so he proceeded on annual leave.

[18]      Michael Robinson is the owner of Robinson Investigations and he testified his firm has been doing work for the federal Department of Justice for a number of years, including the time when Mr. Brecht was working there. One assignment his firm was working on concerned supplying current addresses on specific individuals to the Department of Justice. The work Justice was doing concerned lawsuits being filed by individuals who had attended residential schools.

[19]      Mr. Robinson contacted Mr. Brecht twice while he was an HRDC employee and asked if Mr. Brecht could help in locating two different people. Mr. Brecht supplied one address to Mr. Robinson.

[20]      Mr. Robinson testified no HRDC investigator has ever spoken to him about this matter.

[21]      The Regional Director General for the Saskatchewan Region of HRDC, Mary Lou Deck, was advised of the situation and it was decided that an administrative investigation should be conducted. It was also decided to suspend Mr. Brecht pending the results of the investigation.

[22]      Accordingly, Ms. Cox met Mr. Brecht on May 17, 2002, and gave him the letter suspending him indefinitely, without pay, pending the outcome of the investigation (Exhibit G-14).

[23]      Jean-François Bellemare is a Senior Investigator with HRDC in Ottawa and he was asked to go to Saskatoon to conduct the administrative investigation. Mr. Bellemare was accompanied by Senior Investigator, Claude Jacques, and together they met Mr. Brecht on May 27, 2002. Mr. Brecht reiterated to them what he had already told Ms. Young and Ms. Cox about the RCMP visit and possible charges.

[24]      The investigators then decided to examine all the system inquiries Mr. Brecht had made to the SIN database using his user code during the period May 1, 2001 - May 1, 2002. To get this information, they sent their request to the HRDC office in Bathurst, and they ultimately received a report on this inquiry (Exhibit E-8). The report showed all the dates and times Mr. Brecht accessed the SIN database during the period in question.

[25]      All of this internal investigation was taking time, and in June 2002, Ms. Deck requested an update from the investigators on the status of the matter. An interim report was provided to her on July 12, 2002, which recommended Mr. Brecht be reinstated in a position where he did not have access to personal information. In addition, the interim report indicated more information needed to be gathered and furthermore the RCMP were still investigating the matter from their end.

[26]      Once the investigators received the report from Bathurst, they queried the Investigation Management and Control System. Whenever someone in Mr. Brecht's position begins a work-related query, a case number is assigned automatically. In reviewing all of the accesses Mr. Brecht had made in the one-year period, the investigators discovered 16 queries that Mr. Brecht had made of the system that they believed were not related to any file Mr. Brecht was working on. The investigators felt there was no work-related need to make these 16 references to the database system.

[27]      With respect to the July 12 recommendation to Ms. Deck that Mr. Brecht be reinstated in another position, Ms. Deck said it would have been difficult to do so, as there were very few positions where such access could not be made. About the time this recommendation was being made, the investigators who were working on the case were uncovering the 16 queries mentioned above, as that had been made to the system without any apparent need, so it was decided to keep Mr. Brecht on indefinite suspension.

[28]      A meeting was arranged for August 7, 2002, to question Mr. Brecht on these 16 queries. Attending the meeting with Mr. Brecht was his lawyer, as well as Mr. Bellemare and André Lefebvre, who was the Special Investigation manager. Mr. Bellemare testified that during the August 7 interview Mr. Brecht was told a specific name and social insurance number and then asked why he accessed the databank concerning that number. He was not shown any written documentation. Mr. Brecht refused to give any information on the 16 queries on the advice of his lawyer. Later in the interview, Mr. Brecht stated his accesses might have been related to a file he was working on with another colleague concerning Northern fishermen and he asked for more information on these accesses. None was forthcoming. A transcript of the August 7 interview was identified as Exhibit G-4 and confirms the above sequence of events.

[29]      Mr. Bellemare concluded that the reason provided by Mr. Brecht for these 16 queries was false and the investigation report provided to management reveals this (Exhibit G-5, page 3).

[30]      During the course of the adjudication hearing, Mr. Brecht was shown the reports Mr. Bellemare had commissioned from Bathurst (Exhibits E-8 and E-9) which detailed the date and time each of the 16 accesses in question was made. That was the first occasion Mr. Brecht saw these documents and, upon reviewing them, he provided a work-related reason for the accesses. This work-related reason was not disputed during his cross-examination.

[31]      Ms. Deck received the report on the internal investigation on August 19, 2002, and consulted with her colleagues at Headquarters to determine an appropriate course of action. Following this discussion, Ms. Deck decided to terminate Mr. Brecht based on the fact he provided information to his previous employer, as well as the fact he had made 16 seemingly unnecessary accesses to the SIN registry. Ms. Deck acknowledged the letter of termination did not refer to the 16 queries.

[32]      On September 3, 2002, Ms. Deck met Mr. Brecht in her office and provided him with the letter of termination (Exhibit G-6).

Argument for the employer

[33]      The issue to be decided here is, did Mr. Brecht release confidential information, obtained from the HRDC system, to his former employer, Robinson Investigations.

[34]      There is no direct evidence concerning the information Mr. Brecht supplied to Robinson Investigations as this is contained in the files which are in the possession of the RCMP. However, Mr. Brecht has admitted he did provide information which came from the HRDC system.

[35]      Mr. Brecht admitted to Ms. Cox on May 13, 2002, that he had released personal information, obtained from the HRDC System, to Robinson Investigations. Mr. Brecht should have known that releasing this type of information was not allowed. He had received a copy of the HRDC document (User code Acceptable Use Policy) which states, in part (Exhibit E-6):

Any of the following would be considered improper use of a computer system:

. using system and data resources for other than direct support of authorized projects.

[36]      Releasing confidential information from the HRDC system to a third party is very serious. The purpose of collecting the information initially is so the government can administer its different programs, and there is an obligation on the part of government employees to protect this information.

[37]      Mr. Brecht's decision to disclose this information to a third party has jeopardized the integrity of the HRDC system. He had access to the information in order to administer the Employment Insurance Act, not to disseminate it to a friend.

[38]      In the employer's view, the only appropriate penalty in this case is termination. The employer cannot be seen as having employees act as conduits between private interests while accessing this type of information.

[39]      The indefinite suspension should also be upheld, as it was unmanageable to place him elsewhere in the organization.

[40]      In the alternative, given the fact Mr. Brecht was not forthcoming with an explanation during the investigation, a lengthy suspension should ensue.

[41]      The following case law was submitted by counsel for the employer: Faryna v. Chorny, [1952] 2 D.L.R. 354; Chong and Treasury Board (Revenue Canada- Customs and Excise) (1986), 10 PSSRB Decision 48; Ward and Treasury Board (Revenue Canada - Taxation) (1986), 10 PSSRB Decision 46.

Argument for the grievor

[42]      Mr. Brecht has never denied the fact he supplied HRDC information and his story has been consistent from the outset.

[43]      During the internal investigation Mr. Brecht was advised by his lawyer not to reply to certain questions due to the fact the RCMP were still investigating his situation. The departmental policy on Guidelines for conducting Administrative Investigations indicates that the disclosure of information is voluntary (see section 4.5 of Exhibit G-3). To now claim that Mr. Brecht failed to cooperate and it should go to penalty is not right.

[44]      Some of the conclusions reached in the investigation report are simply wrong. The evidence showed that Robinson Investigations was assisting the Crown in a civil investigation but the report does not recognize this. Secondly, although the report states Mr. Brecht did not want to cooperate with his employer in the investigation, this is not true. He was always cooperative.

[45]      The report also states that Mr. Brecht's explanation of the 16 queries was false. Again this is not true. When he saw the documents for the first time at the adjudication hearing, he was able to provide an uncontested business reason for making the queries.

[46]      The individual who wrote the dismissal letter accepted the investigation report and made a decision on that basis. It is a very serious thing to undermine a person based on a falsity, but that is what was done here.

[47]      Mr. Brecht was a good employee, without any disciplinary record whatsoever. Termination is not appropriate in these circumstances.

[48]      Right from the beginning, the grievor has been forthright in his discussions with management. He did not try to conceal anything. Even today, Mr. Brecht does not know for sure what the RCMP were referring to.

[49]      Ms. Deck accepted the report as accurate and acted upon it. The report is not accurate. Furthermore, the letter of discharge only mentions the release of information. It is silent on the 16 queries, yet Ms. Deck said this was a factor she considered in making her determination to discharge Mr. Brecht.

[50]      The employer has discharged Mr. Brecht for disclosing personal information, yet the employer does not know the nature of the disclosure. The termination was based on what Mr. Brecht himself told his supervisor. Mr. Brecht should be reinstated and the adjudicator should retain jurisdiction to deal with this, if necessary.

[51]      The following case law was submitted by the grievor's representative: Niedermeiser (Board file 166-2-27859); McGoldrick (Board file 166-2-25796); Bastie (Board file 166-2-22285); Labrie (Board file 166-2-26301); Allen (Board file 166-2-25656).

Reply

[52]      The information Mr. Brecht released was supplied to a friend, and its release benefited this friend. Ms. Deck said this part alone would justify termination.

Decision

[53]      Mr. Brecht was discharged by way of a letter signed by Ms. Deck dated September 3, 2002. The reason for the discharge cited in the letter (Exhibit G-6) was: ".. You were alleged to have inappropriately released personal information contrary to Privacy legislation ."

[54]      Ms. Deck testified that her decision to discharge the grievor was based on the findings of the internal investigation. Those findings cited the release of information as well as the unexplained 16 queries to the social insurance registry system.

[55]      While Ms. Deck stated she would have terminated the grievor on the release of information alone, the fact remains there were two considerations she had when she terminated the grievor. Nothing was mentioned in the letter of termination about these 16 queries.

[56]      During the investigation, Mr. Brecht was informed that, in the employer's view, he had made 16 queries to the HRDC SIN registry without any work-related need to do so. Mr. Brecht initially did not reply to this allegation on the advice of his lawyer, but later in the interview, he did ask for more information to see if he could offer an explanation. No further information was proffered to Mr. Brecht, and the investigators drew the conclusion that Mr. Brecht was uncooperative.

[57]      At the adjudication hearing, when Mr. Brecht saw the documentation for the first time, he was able to put forward a valid work-related reason for this access. This reason was not challenged by the employer and I can only conclude that had the documentation been shown to Mr. Brecht during the internal investigation, he would have proffered the same work-related reason, which would have been accepted.

[58]      The investigation report concludes that Mr. Brecht was uncooperative with respect to the administrative investigation. Ms. Deck testified that the findings of the investigation report played a significant role in reaching her conclusion to terminate Mr. Brecht. Based on the evidence presented at this hearing, I do not support the conclusion that Mr. Brecht was uncooperative. Initially, he did indicate he declined to answer the employer's questions on the advice of his lawyer, but later in the interview he asked for more information in order to see if he could reply. None was forthcoming.

[59]      On May 13, 2002, the RCMP visited Mr. Brecht's HRDC office and informed him that, pursuant to a matter they were investigating, he could be charged with a series of offences, including breach of trust and improper release of information. To this day, that is all Mr. Brecht knows.

[60]      Immediately upon hearing this, Mr. Brecht informed his supervisor, Ms. Young. Later that day, Mr. Brecht and Ms. Young informed Ms. Cox, the Acting Manager, of these events.

[61]      These facts were not disputed and came from the employer's witnesses in their evidence-in-chief. Nothing that I was made aware of indicated that Mr. Brecht was uncooperative in this regard.

[62]      Mr. Brecht released information to Robinson Investigations, according to both Mr. Brecht and Mr. Robinson. The information came from the HRDC system and was provided while Mr. Brecht was an employee of HRDC. We do not know if this is the information the RCMP were referring to when they entered Mr. Brecht's office and said he could be charged. However, we do know this is one of the reasons for the employer's decision to terminate.

[63]      Mr. Brecht stated he supplied this information in the belief that Mr. Robinson was pursuing a matter for the Crown. Mr. Robinson testified he was indeed conducting work for the Crown. The HRDC investigation report indicates that the Crown relies on the police to conduct criminal investigations, not private investigations, and invited the conclusion that Mr. Brecht was being less than truthful in this aspect. Mr. Robinson stated it was a civil matter the Crown was working on and his firm has been used many times in the past for such matters by the Crown.

[64]      If the investigators had spoken to Mr. Robinson during the course of their investigation, perhaps this could have been clarified. They didn't. Instead, they drew a conclusion that Mr. Brecht was being untruthful. My observation of the grievor's demeanour, coupled with the evidence he provided both in chief and in cross-examination, led me to believe he was being truthful. The evidence clearly showed that Mr. Brecht believed he was supplying information to assist the Crown. Not only did Mr. Brecht believe it, but the fact of the matter is, based on Mr. Robinson's evidence, Mr. Brecht did supply information that the Crown was seeking. This evidence was not refuted in any way.

[65]      In my view, it would have been more helpful to show the investigation report to Mr. Brecht after it had been drafted and ask for his response to it. The employer chose not to do so and instead relied upon it to decide an appropriate course of action.

[66]      At the outset of the investigation, Mr. Brecht was suspended. What was known then was that Mr. Brecht released HRDC information to a third party, namely his former employer. Indeed, Mr. Brecht admitted as much at the outset and has never denied doing so. That information was still known to the employer on July 12, 2002, when the recommendation was made to Ms. Deck that Mr. Brecht be reinstated. Ms. Deck testified she did not accept that recommendation at that time due to the fact the 16 accesses Mr. Brecht was alleged to have made without any apparent need, had just then come to her attention.

[67]      Ms. Deck testified she terminated the grievor after reviewing, and accepting, the Investigation Report, a report which concluded there was no apparent business reason for the 16 accesses. We now know this conclusion was proven incorrect at the adjudication hearing.

[68]      There is no question in my mind that the act of releasing HRDC information to a third party is serious. Indeed, Ms. Deck testified that she would have terminated the grievor on this basis alone. However, the fact remains that a departmental recommendation was made for reinstatement when it was known that Mr. Brecht released HRDC information to a third party.

[69]      I believe the question I must answer now is, was termination an appropriate disciplinary response given the evidence here?

[70]      Mr. Brecht had a discipline-free record and a positive performance report. It was clear to me he was not what was regarded as a "problem employee". However, he did do something which he should not have done, and which he should have known was not permitted.

[71]      The employer collects personal information from all Canadians and it is the public's expectation that this information data bank will be kept confidential. Revealing this information for a purpose other than that for which it was collected is wrong, and I believe Mr. Brecht knows it was wrong. However, I believe this is an exceptional case, one where the grievor truly believed he was assisting the Crown in an investigation.

[72]      I heard that the employer made a recommendation on July 12 to reinstate the grievor somewhere in the organization knowing, at that time, that the grievor had released personal information. Based upon all of the evidence I have heard, as well as reviewing the case law supplied, I believe reinstatement in these very exceptional circumstances is appropriate.

[73]      Accordingly, I order that the grievor be reinstated in his former position effective July 12, 2002. This is the same date the recommendation for reinstatement was made to Ms. Deck. The time from the commencement of his indefinite suspension (May 17, 2002) until July 12, 2002, should remain as a suspension without pay.

[74]      This decision should not be regarded as one which sets out the proposition that releasing information, which the employer has gathered from the public, to a third party is not sufficient reason for termination. In other circumstances, termination for this type of action may indeed be an appropriate response. This is a serious offence and the grievor has incurred what can only be regarded as a lengthy suspension. However, I am convinced that the bond of trust has not been so irreparably broken here that it cannot be fixed. Mr. Brecht, I believe, is someone who has in the past, and can in the future, make a positive contribution to his area of employment. I can only hope that the future proves this true.

[75]      I shall remain seized with respect to the implementation of this award if the parties encounter any difficulty, provided a request to do so is made to me no later than July 1, 2003.

Joseph W. Potter,
Vice-Chairperson.

OTTAWA, May 5, 2003