FPSLREB Decisions

DECISION

[1]     On October 10, 2003, Todd Ramirez (the “grievor”) was summoned to a meeting and was advised by Sylvain St-Denis, A/Assistant Commissioner, Appeals Branch, Canada Customs and Revenue Agency (CCRA), that he was indefinitely suspended without pay, effective that day, from his position as a Computer Analyst (CS-02). The grievor was suspended pending the results of an investigation concerning allegations that he was involved in illegal activities. The letter of suspension (Exhibit E-6) reads as follows:

This is to advise you that the Appeals Branch has decided to suspend you without pay for an indefinite period pending the outcome of an investigation into allegations that you are involved in illegal activities.

This indefinite suspension will take effect on October 10, 2003.

You will be advised at a later date of the results of the Agency’s investigation into this matter and of any subsequent action to be taken by the Agency.

Should you require information with respect to your pay and benefits during this period of indefinite suspension, please contact your pay advisor, […]

Please acknowledge receipt of this letter in the space provided on the duplicate copy.

[2]     On March 12, 2004, the grievor referred his grievance to adjudication. Following the referral of his grievance to adjudication, the Board received no further communication of any kind, written or otherwise, from the grievor. The Board sent him a registered letter acknowledging receipt of the reference to adjudication (Form 14), but it was returned with a note indicating that the grievor had moved and an address in the Philippines was noted in pen on the envelope. All future correspondence from the Board was then sent to the grievor to the address in the Philippines, including a Notice of Hearing, dated July 21, 2004, advising him of the hearing scheduled for September 20 to 24, 2004. The Notice of Hearing was sent by registered mail with a request to Canada Post that a signature be obtained. As well, one of the Board’s Registry Officers attempted to contact the grievor by telephone to confirm that he had received the Notice of Hearing but was unsuccessful. The telephone operator advised the Officer that there was no listing under the grievor’s name in the city of Marikina, in the Philippines. However, prior to the hearing, the grievor’s union representative was in contact with him (by e-mail) and the grievor was aware that his hearing was scheduled for the week of September 20 (Exhibit E-4).

[3]     The hearing proceeded as scheduled on September 20, 2004. Counsel represented the employer but neither the grievor nor a representative acting on his behalf was present. Counsel for the employer filed nine exhibits but did not call any witnesses.

[4]     In his opening remarks, counsel for the employer raised an objection to the jurisdiction of the Board to hear this matter. He stated that the grievor’s indefinite suspension was the result of an administrative action and was not disciplinary in nature. Accordingly, counsel for the employer argued that the Board does not have jurisdiction pursuant to paragraph 92(1)(b) of the Public Service Staff Relations Act (PSSRA) and the grievance should be dismissed without a hearing.

[5]     I indicated to counsel that I would reserve judgement with respect to his objection and proceeded to hear the merits of the case.

Facts

[6]     The employer’s case can be summarized as follows. Early in June 2003, while at work, the grievor downloaded a large document from the Internet, which prompted personnel from the IT Systems Branch to investigate. As a result of this investigation, a number of e-mails, which were of concern to management, were discovered on the grievor’s computer. The e-mails were filed as Exhibits E-7 and E-8.

[7]     On July 3, 2003, Mr. St-Denis sent a memorandum to André St-Laurent, Director, Internal Affairs Division, Security Directorate, CCRA, requesting a thorough investigation into some specific e-mails found on the grievor’s computer. It was felt that the grievor might be providing information, to third parties, through the CCRA computer systems, on fraudulent practices with respect to customs duties (Exhibit E-5(a)). Mr. St-Denis then sent a memorandum, on July 11, 2003, to Ray James, Investigations, Compliance Program Branch, CCRA, requesting a formal investigation (Exhibit E-5(b)).

[8]     As well, the employer met with the Royal Canadian Mounted Police (RCMP). As a result, the RCMP decided to conduct a criminal investigation into alleged fraudulent practices by the grievor, and this investigation is still ongoing.

[9]     The e-mails in question (Exhibits E-7 and E-8) were sent from the grievor’s home and work e-mail addresses. They read as follows:

[ Note: The names and/or addresses of the individuals to whom the e-mails
           were sent or from whom they were received have been omitted.]

[10]     On December 14, 2000, the grievor sent the following e-mail to an individual (Exhibit E-8):

Hi, […]. Because of your prompt payment, I will ship tomorrow (I have the package at home and I am at the office right now). If it is ok with you, I will also declare this as a Christmas present to save you customs duty. But US customs only allows $100 per person for gifts. Because of the amount, I will need four names…maybe your kids’, spouse’s names, whatever. Let me know so I can declare it on the customs form.

Expect the package to arrive sometime next week, but because of the Xmas rush, maybe give UPS another couple of days?

[Sic throughout]

[11]     The next day, on December 15, 2000, he sent the following e-mail to another individual (Exhibit E-8):

[…]

You should have received confirmation from Paypal of my payment by now.

Can you please declare the item as a Christmas gift? I just want to save a few bucks on customs duty. The names of people the gift is going to are:

Todd Ramirez
Sarah Ramirez
Krystal Ramirez
Marie Ramirez

Thanks in advance.

[12]     On January 27, 2003, the grievor received the following e-mail (Exhibit E-8):

Received no tracking number yet from you or UPS. If it’s a problem to ship to the address I gave you let me know so I can shop elsewhere. I can see your point of view and there is [sic] no hard feelings, thanks […]

[13]     On January 28, 2003, he replied as follows (Exhibit E-8):

Argh! […], my girlfriend just told me that she shipped the card separately! It was our standard way of shipping to protect the card from seizure going INTO THE U.S. but she didn’t realize this is not going to the U.S.

Rest assured that the card is on its way. Here is the XpressPost tracking no.:

[…]

You should get it Wednesday or Thursday. Sorry for the mix-up. Women! Can’t live with them, can’t shoot them!

[14]     On February 18, 2003, he received the following e-mail (Exhibit E-7):

I am in Columbus, Ohio, USA. I’ll send you the series # tonight once I get home. Any idea if I need to do anything special when mailing this to you? i.e. customs, duties, etc.? I’ve never mailed internationally before. Thanks!

[15]     The following day, he replied as follows (Exhibit E-7):

[…] other than customs forms, there is nothing special about shipping to Canada. I do request that you FedEx, *not* UPS. I’ve had nothing but nightmares with UPS while FedEx can do no wrong. Definitely do not use regular mail. They’re the worst. The cost of FedEx ground and UPS ground and USPS Global Priority are quite similar anyway. I’m not asking for FedEx Express, just FedEx ground. It takes about one week, but that’s ok, I’m not going anywhere; at least FedEx ground is relatively cheap .

I might as well give you my shipping info and instructions:

[…]

Please declare the item exactly this way: “Video Receiver (Gift)” with a value of $35. This way it goes right thru customs without delay. Don’t worry, I’ve had many receivers shipped to me with no problems whatsoever…at least with FedEx. UPS consistently gets items brokered and opened by customs, consequently costing me much more than if shipped by FedEx. Do not make mention of the HU card in the declaration; it’s not important. But leave it in the receiver, exactly where you normally insert it.

Did you find out the series # yet?

Again, Reply All to this.

[Sic throughout]

[16]     As a result of the formal investigation, on October 3, 2003, the CCRA applied for and was granted a warrant by the Court to search the premises occupied or used by the grievor (Exhibit E-9):

ATTACHMENT “B”

BETWEEN THE DATES OF THE 1 ST OF OCTOBER, 2000 AND THE PRESENT DATE, TODD RAMIREZ LOCATED AT […]

1. Did willfully make, and participate in, the making of a false and deceptive statements [sic] made in writing contrary to Section 153 (a) of the Customs Act thereby committing an offence under Section 160 of the Customs Act, S.C. 1986, C-1, as amended or its regulations;

AND THAT;

BETWEEN THE DATES OF THE 1 ST OF OCTOBER, 2000 AND THE PRESENT DATE, TODD RAMIREZ LOCATED AT […]

2. Did willfully evade the payment of duties and taxes on imported goods, to wit DVD’s, Playstations, satellite dishes, receivers, cards and related equipment, by falsely declaring the value or description of the goods, contrary to Section 153(c) of the Customs Act thereby committing an offence under Section 160 of the Customs Act, S.C. 1986, C-1, as amended or its regulations;

AND THAT;

BETWEEN THE DATES OF THE 1 ST OF OCTOBER, 2000 AND THE PRESENT DATE, TODD RAMIREZ LOCATED AT […]

3. Did, without lawful authority or excuse, possess, or otherwise acquire, without lawful excuse, to wit DVD’s, Playstations, satellite dishes, receivers, cards and related equipment, unlawfully imported into Canada, contrary to Section 155 of the Customs Act thereby committing an offence under Section 160 of the Customs At, S.C. 1986, C-1, as amended or its regulations.

[17]     The grievor’s office and home computers were seized.

[18]     On July 21, 2004, Mr. St-Denis sent a registered letter (Exhibit E-1) to the grievor, at his last known address in Ottawa, to request a meeting to obtain additional information. On July 26, 2004, he wrote again to the grievor (Exhibit E-1) after becoming aware of the grievor’s address in the Philippines. He advised the grievor that the investigation had been completed and reiterated that management wished to meet with him to obtain additional information. This letter was sent by Express Post. Then, on August 17, 2004, Mr. St-Denis sent another letter to the grievor indicating that if the grievor failed to contact him by August 31, 2004, he would have no option but to consider that the grievor had abandoned his position and his employment would be terminated (Exhibit E-1).

[19]     On August 9, 2004, through a computerized tracking system, it was confirmed that the letter of July 26, 2004, had been received by the grievor.

[20]     Counsel for the employer stated that the following factors were taken into consideration by Mr. St-Denis when he made the decision to suspend the grievor indefinitely:

1. The grievor’s position required that he hold an enhanced reliability security clearance and he had the passwords to access the CCRA computers; therefore, it was the employer’s position that he could not be placed in an alternative position.
2. The interest and operations of the CCRA.
3. The public image of the CCRA if one of its employees was discovered to be involved in fraudulent activities in other countries and/or worldwide.
4. The involvement of the RCMP.
5. Personal use by the grievor of the employer’s computers.
6. The bond of trust between the employer and the grievor had been broken.
7. The grievor used inside knowledge to evade paying customs charges and taxes.

[21]     Counsel concluded the employer’s case by referring to the following case law: Ogilvie v. Treasury Board (Indian and Northern Affairs), PSSRB File No. 166-2-14268 (1983) (QL); Coté v. Treasury Board (Revenue Canada – Taxation), PSSRB File Nos. 166-2-19604, 166-2-19605 and 166-2-20866 (1992) (QL); Gunderson v. Treasury Board (Revenue Canada – Customs and Excise), PSSRB File Nos. 166-2-26327 and 166-2-26328 (1995) (QL); Nolan v. Treasury Board (Revenue Canada – Taxation), PSSRB File No. 166-2-17895 (1989) (QL); Cotter v. Treasury Board (Revenue Canada – Taxation), PSSRB File No. 166-2-16113 (1988) (QL); McManus v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File Nos. 166-2-8048 and 166-2-8078) (1980) (QL); Charbonneau v. Treasury Board (Revenue Canada – Customs, Excise and Taxation), PSSRB File Nos. 166-2-25889 and 166-2-25890) (1995) (QL); Decae v. Treasury Board (Revenue Canada – Excise), PSSRB File No. 166-2-26796 (1996) (QL); Griffiths v. Treasury Board (Canada Employment and Immigration Commission), PSSRB File No. 166-2-7949 (1980) (QL) and Re Ontario Jockey Club and Mutuel Employees’ Association, Service Employees’ International Union, Local 528 (1977), 17 L.A.C. (2d) 176.

Reasons for Decision

[22]     I have noted counsel for the employer’s objection to the jurisdiction of the Board to hear this matter, as it does not fall within the scope of paragraph 92(1)(b) of the PSSRA.

[23]     The employer suggests that the grievor’s suspension was an administrative action as opposed to a disciplinary action.

[24]     Given my decision on the issue of just cause, I decline at this time to address the issue of the adjudicability of the grievance under paragraph 92(1)(b), as such a determination is not necessary at this time.

[25]     I would note, in passing, that although the grievor was not present to argue undue financial hardship, caused by the overly lengthy investigation by the CCRA, I would suggest that the employer review the following decisions: Blackburn v. Treasury Board (Solicitor General Canada – Correctional Service), 2003 PSSRB 49, and Larson v. Treasury Board (Solicitor General Canada – Correctional Service), 2002 PSSRB 9.

[26]     The question that I must decide is not whether the grievor is guilty of the allegations set forth by the employer, but whether the evidence the employer had at hand was enough to establish good and sufficient cause to suspend the grievor indefinitely.

[27]     I have come to the conclusion that it has shown just cause, for the following reasons.

[28]     The evidence before me reveals that the employer had ample evidence or reason to suspect that the grievor was involved in activities that were of a dubious nature. Exhibits E-7 and E-8 clearly demonstrate that the employer was justified in suspecting that he had used his position and his knowledge of the Customs Act to avoid paying customs charges and taxes. The evidence also suggests that he had advised individuals on how to avoid customs inspections and the payment of duty and taxes.

[29]     A Justice of the Peace believed that there were sufficient grounds to issue a search warrant for the premises occupied by the grievor. As well, the RCMP instituted a criminal investigation into the grievor’s activities while he was employed at the CCRA.

[30]     I agree with counsel for the employer that the allegations against the grievor, if made public, could have jeopardized the public’s image of the CCRA and seriously damaged the bond of trust that an employee in that position is expected to maintain.

[31]     Therefore, I conclude that the risk to the CCRA’s reputation if the grievor continued to work within the Department while the investigation was ongoing was too great a burden for the employer to assume.

[32]     The fact that the grievor did not present himself at this hearing, that he chose not to respond to his bargaining agent’s requests for confirmation of his intentions prior to the scheduled hearing and that he made no effort to communicate with this Board to advise it of his relocation to the Philippines, shows a complete lack of interest with regard to his employment in the Federal public service.

[33]     The grievance is dismissed. The employer has met the burden of proving reasonable cause for the grievor’s indefinite suspension.

D.R. Quigley,
Board Member

OTTAWA, November 5, 2004.