FPSLREB Decisions

[1]   On June 3, 2004, Paul Bélisle, Clerk of the Senate, notified Guy Joly of his decision to dismiss him on May 20, 2004 (Exhibit F-4). At the time of the dismissal, the grievor had occupied a position as a constable in the Senate Protective Service for 12 years. The reasons for the dismissal have to do with [ Translation] "intrusion into the electronic mailbox of a co-worker and unauthorized disclosure of information that is personal, confidential, or related to Senate security measures".

The evidence

For the employer

[2]   Serge Gourgue is Director of Parliamentary Precinct Services for the Senate. Since 1999, he has been responsible for four services at the Senate, including the Protective Service. The grievor was a constable at the time of the dismissal and had been a constable since 1991.

[3]   In co-operation with the Senate Protection Services Employees Association (the union, or the Association), a code of professional ethics (Exhibit E-2) was prepared. Under the terms of this code, the members of the Protective Service promise not to take advantage of their authority, never to accept bribes or favours, and never to compromise their integrity or that of the Service in any way whatsoever.

[4]    The offices of the Senate are located in four buildings in downtown Ottawa.

[5]    On May 5, 2004, the witness learned from Senior Superintendent Pitre that the same morning, Mr. Joly had apparently obtained unauthorized access to certain personal e-mail messages of Constable Taylor (Exhibit E-2, Tab 1, incident report). The following day, Constable Taylor filed a formal complaint about the incidents (Exhibit E-2, Tab 4).

[6]    In 1997 and 2002, the Senate adopted policies on computer security and the use of its computer network (Exhibit E-2, Tab 13). These documents are available to all Senate employees on the Senate Intranet site, called Intrasen.

[7]    Following Constable Taylor’s complaint, Mr. Gourgue asked that an inquiry into Mr. Joly's computer account over a two-year period be conducted. This inquiry, conducted by Staff Sergeant St. Martin, showed that during the previous two years, the grievor sent a series of documents (Exhibit E-2, Tab 12) to Jacques Dupuis, a former constable of the Senate who had been dismissed in November 2002 for disciplinary reasons. Following mediation in June 2003, an arrangement allowed Mr. Dupuis to resign from the Senate Protective Service, thus removing the dismissal from his file.

[8]    At the time of Mr. Dupuis's dismissal, the employer considered him a threat and had restricted his access to Parliament Hill and the other buildings where Senate offices were located. In this regard, on November 4, 2002, the Senate had issued a Restricted Access Person (RAP) document (Exhibit E-2, Tab 9).

[9]    On November 17, 2002, Mr. Joly sent Mr. Dupuis a copy of the RAP issued against him. According to Mr. Gourgue, persons against whom RAPs are issued are not supposed to receive copies of them.

[10]    Since the incidents of September 11, 2001, the Senate has had to be extremely vigilant where security is concerned.

[11]    On December 15, 2003, Mr. Joly sent Jacques Dupuis UNICAN access codes for the Senate offices at 56 Sparks Street in Ottawa, where the constables' lockers and the Senate operations centre are located (Exhibit E-2, Tab 5). These codes were sent in an e-mail message, in which Mr. Joly told Mr. Dupuis, [ Translation] : "Just in case you'd like to break and enter ... hahahahahahaha they'll change the UNICAN number [sic] at ops and at 56  Sparks."

[12]    In April 2003, in response to Mr. Dupuis’s request to send him a list of Senate Protective Service employees' telephone numbers by e-mail, Mr. Joly wrote: [ Translation] "Unfortunately I can't send you the telephone list by e-mail because they've taken it off the computers. I'd have to find a hard copy." Mr. Gourgue says that he was informed by the investigator that the grievor had sent the list of telephone numbers, several of which are unlisted, to Mr. Dupuis.

[13]    On December 21, 2002, Mr. Joly sent Mr. Dupuis, who at the time was considered to have been dismissed, a document entitled "Senate need to know.doc" that dealt with special security measures taken to protect a Minister to whom threats had been uttered (Exhibit E-2, Tab 7).

[14]    As early as November 7, 2002, Mike McMahon, President of the union, notified Mr. Joly in writing of Mr. Dupuis's dismissal (Exhibit E-2, Tab 8). In his memorandum, the President of the union indicates that Mr. Dupuis [ Translation] "was dismissed following the statement by management that it had evidence, provided by the RCMP, that Mr. Dupuis had written four anonymous letters to certain Senators, among others, that were prejudicial to the Senate".

[15]    In November and December 2002, the grievor sent Mr. Dupuis the complete Operations Manual of the Senate Protective Service (Exhibit E-2, Tab 12) in electronic format. According to the witness, sections 5 and 6 regarding emergency situations are especially confidential, although the document itself has no security classification.

[16]    In June 2003, the grievor sent Mr. Dupuis an e-mail message containing the names of persons against whom RAPs had been issued.

[17]    In mid-November 2003, Mr. Joly sent an up-to-date list of all Senators' names, photos and telephone numbers to Mr. Dupuis (Exhibit E-2, Tab 14). This list was sent to Mr. Joly by means of an e-mail message that asked Senate employees who received it [ Translation] "to keep the use of these photos strictly within the limits of the Senate Protective Service".

[18]    The decision to dismiss Mr. Joly was made by the Clerk of the Senate on the recommendation of a committee of six persons, including the witness. The committee also included two experts on human resources and labour relations, two lawyers, and the Assistant Director of the Service. Before making its recommendation for dismissal, the committee considered, among other things, the very serious nature of the actions being criticized, the grievor's unacceptable lack of judgement, and the mitigating circumstances surrounding the case.

[19]    The committee also took into consideration the explanations provided by Mr. Joly (Exhibit E-3) and the fact that, despite the excuses he offered and the remorse he expressed, he indicated that in similar circumstances, he would do the same thing again.

[20]    Under cross-examination, Mr. Gourgue acknowledged that it is possible to enter the operations centre via a second door that opens without the UNICAN access code.

[21]    The witness also acknowledged that the Operations Manual is available in the library, on all workstations, and to students and interns, and that some employees take it home in order to study it.

[22]    Following the mediation in June 2003, the restriction of access to Parliament Hill imposed on Mr. Dupuis was lifted.

[23]    The witness maintains that his dealings with Mr. Joly were always professional and that the case of André Dupuis (Jacques's son, Exhibit F-5) did not affect his conduct towards the grievor.

[24]    Lastly, Mr. Gourgue assumes that Mr. Joly is aware of the Senate's policies on the use of computer networks.

[25]    Staff Sergeant St . Martin then testified. He is responsible for the security of the Senate's computer network. In this capacity, he was involved in the inquiry into Mr. Joly’s actions. His inquiry report is found in Exhibit E-2, before Tab 1.

[26]    According to the witness, Constable Taylor told him that he had to ask Constable Joly two or three times before he would admit to being the person responsible for the unauthorized access to his personal e-mail messages on May 5, 2004.

[27]    On May 12, 2004, the witness met with Mr. Joly in order to question him, with Corporal Vincent in attendance (Exhibit E-2, Tab 11). The grievor denied nothing and offered excuses. During the questioning, Mr. Joly admitted sending the list of Senate Protective Service employees' names and telephone numbers. The grievor explained that some of the documents had been sent to Jacques Dupuis as a joke, or to help him prepare his grievance, or to boost his spirits or, finally, simply because they were still friends.

[28]    Under cross-examination, the witness admitted that Mr. Joly could have erased the e-mail messages he had sent to Mr. Dupuis from his system.

[29]    Gilles Beaulieu is a labour relations consultant at the Senate. He met with Mr. Joly on May 25, 2004, with Mr. Gourgue in attendance, in order to give the grievor an opportunity to make comments before disciplinary action was taken. From Mr. Joly's remarks, the witness understood that Mr. Joly did not think that the actions being criticized were particularly serious and that in similar circumstances, he would do the same thing again.

For the grievor

[30]    Guy Joly worked at the Senate Protective Service for 12 years. He first explained the circumstances surrounding his actions on May 5, 2004, in terms of helping a friend and reading a letter to which Constable Taylor often referred. Today, Mr. Joly acknowledges that he made a mistake and that he should simply have closed Constable Taylor's [ Translation] "account".

[31]    Mr. Joly says that he denied his actions only once. As well, he admitted to Constable Taylor that he was the guilty party even before he knew that an inquiry had been launched. On May 12, 2004, he met with Mr. St. Martin and Mr. Vincent. Mr. Joly denies admitting at that meeting that he had indeed sent Mr. Dupuis a copy of the list of the Service employees' names and telephone numbers.

[32]    On May 20, 2004, at the disciplinary meeting with Mr. Gourgue and Mr. Beaulieu, Mr. Joly was given a binder that he could keep containing the documents found in Exhibit E‑2, Tab 12, as well as the summary of the May 5 meeting prepared by Corporal Vincent and found in Exhibit E-2, Tab 11. During that meeting, Mr. Gourgue asked him to provide comments. Mr. Joly was then suspended without pay.

[33]    On May 22, 2004, the grievor sent Mr. Gourgue an e-mail message (Exhibit E-3) in which he explained himself, referred to his union responsibilities, questioned his tense dealings with Mr. Gourgue and, finally, noted mitigating circumstances that the employer should consider before taking disciplinary action.

[34]    Mr. Joly explained that Jacques Dupuis, to whom he sent the documentation found in Exhibit E-2, Tab 12, was a very good friend whom he wanted to help. As well, the grievor was a resource person for Mr. Dupuis in the processing of Mr. Dupuis's grievance of his dismissal. Mr. Joly never received money or compensation for the help he provided to Jacques Dupuis.

[35]    Sending the UNICAN codes to Mr. Dupuis was only a joke. He would never repeat that action today. As well, he did not send Mr. Dupuis the list of the Service employees' names and telephone numbers.

[36]    Mr. Joly sent the memorandum concerning the security of a Minister so that Mr. Dupuis would be up-do-date and not have to read [ Translation] "a year's worth" of directives if he returned to work. He sent the RAP issued against Mr. Dupuis simply because Mr. Dupuis had asked him to do so.

[37]    The complete Operations Manual was sent to Mr. Dupuis in order to help him prepare his grievance. In any case, the Operations Manual was available to all constables, students and interns, who could even take it home. Although the Manual still does not have a security classification, today he would not give it to anyone.

[38]    Mr. Joly says that he never saw the documents adduced by the employer concerning the security of the Senate's computer network (Exhibit E-2, Tab 13). Mr. Beaulieu was mistaken in telling the Employment Insurance investigator that the grievor was aware of those policies.

[39]    Mr. Joly then spoke about his 10 years of union activity and the fact that his dealings with Mr. Gourgue deteriorated markedly following his involvement in the case of André Dupuis (Exhibit F-5), Jacques Dupuis's son.

[40]    Mr. Joly is 38 years old and uses an orthotic device. He has a son with a disability and is separated from his spouse. Quite recently, he found employment in a sawmill. Following his dismissal, he had to borrow money and collapse his RRSPs in order to live. He wishes to be reinstated in his position as a constable, which he enjoyed very much. When he sent documents to Mr. Dupuis, he did not think he was doing wrong. Lastly, he never thought that Mr. Dupuis could have been ill-intentioned.

[41]    Under cross-examination, Mr. Joly acknowledged the mistakes he made. He certainly should not have read Constable Taylor's e-mail messages. Concerning the other documents, he only wanted to help his friend Dupuis prepare his grievance and give him emotional support. Mr. Joly acknowledged that it could have been dangerous if certain documents sent to Mr. Dupuis had fallen into the wrong hands.

[42]    Concerning the photos of the Senators, Mr. Joly did not notice the instruction on the last page of the document [ Translation] "to keep the use of these photos strictly within the precinct of the Senate Protective Service".

[43]    Mr. Joly maintains that Mr. Gourgue has had a grudge against him since the case of André Dupuis. He nevertheless acknowledges that at the time, there were six hierarchical levels between him and Mr. Gourgue.

[44]    Michael McMahon testified at the grievor's request. He has been President of the Association for five years.

[45]    At the time, Mr. McMahon knew in a general way that Mr. Joly was helping Mr. Dupuis prepare his grievance.

[46]    Before Mr. Joly was dismissed, he did not know that the employer had adopted policies (Exhibit E-2, Tab 13) on the security of the Senate's computer network.

[47]    Mr. McMahon would never have given the UNICAN codes or the Operations Manual to anyone outside the Service.

[48]    The witness notes the case of Constable C., who had been negligent in carrying out his duties and had not been dismissed.

Evidence in rebuttal

[49]    Superintendent Raymond Pitre explained the facts of the case of Constable C., the isolated nature of the action, and the reasons the employer imposed only a reprimand in that case.

Arguments

For the employer

[50]    Constable Joly made a series of mistakes that show a serious lack of judgement, as a result of his friendship with Jacques Dupuis and his perception of his role as a union representative.

[51]    It was only because of the incidents of May 5, 2003, that the employer was able to learn the nature and extent of the violations committed by the grievor. The employer criticizes Mr. Joly for having sent personal information and information related to Senate security measures to an unauthorized person. What is involved, therefore, is a serious lack of judgment. The Association President himself indicated that he would never have sent Mr. Dupuis most of the documents that were sent.

[52]    One year after the incidents of September 9, 2001, Mr. Joly should have known that terrorists' most prominent symbolic target is Parliament Hill. Mr. Joly’s actions show carelessness at the very least. The excuse he offered that he also wanted to help Mr. Dupuis return to work by keeping him up-to-date does not stand up.

[53]    All of Mr. Joly’s actions are in contradiction with his role and responsibilities as a constable of the Senate Protective Service. What is involved is not an isolated incident but rather a series of inappropriate actions the repetitiveness of which is disturbing. Given the nature of the work of a constable at the Senate, the employer must have "blind" trust in its employees. The nature, frequency and repetitiveness of Mr. Joly’s actions mean that the Senate no longer trusts him.

[54]    The grievor's allegation that the penalty imposed is the result of anti-union animus by Mr. Gourgue is unfounded. There is no evidence to that effect. In any case, the decision to dismiss Mr. Joly was made by a committee of which Mr. Gourgue was one member.

[55]    The case of Constable C. and that of Mr. Joly are not similar and cannot be compared. The significant differences between the two cases justify the divergence between the penalties imposed.

[56]    In support of its case, the employer cites the decisions in Dosanjh v. Treasury Board, 2003 PSSRB 16; and Brecht v. Treasury Board, 2003 PSSRB 36.

For the grievor

[57]    Regardless of the employer's opinion, Mr. Joly is not beyond rehabilitation. The penalty imposed in this case is too severe. Mr. Joly’s actions do not justify dismissal.

[58]    The employer exaggerated some of the grievor’s actions in order to justify the dismissal and to allege that the bond of trust was broken.

[59]    A grievance adjudicator has the power to intervene in disciplinary matters, taking into consideration the reasonableness of the penalty imposed. As well, a grievance adjudicator must take into consideration the circumstances that might mitigate the penalty imposed.

[60]    Although Mr. Joly showed poor judgement, he never intended to defy authority or to act maliciously.

[61]    The employer acted in a discriminatory manner by treating Constable C.'s case differently from that of Mr. Joly since, in both cases, the actions that are criticized are similar.

[62]    Mr. Joly's potential for rehabilitation is high, and the possibility that he will repeat his mistakes is nonexistent. Determining whether the bond of trust has been broken calls for the application of an objective test. Considered in context, Mr. Joly’s actions are not that serious.

[63]    Maintaining the dismissal in this case would only endorse the employer's desire to punish. The penalty imposed reflects the tensions that existed between Mr. Joly and Mr. Gourgue.

[64]    Mr. Joly's grievance should therefore be allowed, and the penalty imposed should be reduced.

[65]    In support of his case, the grievor cited: Canadian Labour Arbitration, second edition, Brown and Beatty; Monograph No. 13, Les Mesures Disciplinaires : Étude Jurisprudentielle et Doctrinale, Claude D’Aoust, Louis Leclerc and Gilles Trudeau; Hamelin v. Treasury Board, Board File Nos. 166-2-9126 and 9127 (1980); Demers v. Treasury Board, Board File Nos. 166-2-13980 and 13990 (1993); Wong v. Treasury Board, Board File No. 166‑2‑14777 (1984); McGoldrik v. Treasury Board, Board File No. 166-2-25796 (1994); Bell Canada c. Association Canadienne des Employés de Téléphone (ACET), [2000] R.J.D.T. 358; and Syndicat des Employées et Employés Professionnels-les et de Bureau (SEPB), Section Locale 57 c. Caisse Populaire Desjardins de Vanier, D.T.E. 2001T‑503.

Reasons for decision

[66]    As a constable at the Senate Protective Service, Mr. Joly was responsible for the security of the Senate, its premises and offices, its employees, its visitors and the Senators themselves. The actions of misconduct for which the grievor is being criticized, and to which he has admitted, breach a constable’s fundamental duty. Those actions, particularly sending the UNICAN codes, sending information about the RAPs, and sending Senators' photos and telephone and office numbers, are incompatible with a constable's responsibilities and unacceptable.

[67]    Since the events of September 11, 2001, the importance of security issues has greatly increased. Given the seriousness of Mr. Joly’s actions, the employer had a duty to be concerned and to crack down.

[68]    Given Mr. Joly's unblemished disciplinary record, his union responsibilities, and the mitigating circumstances pointed out by his representative, can we maintain the dismissal and find, as the employer alleges, that the bond of trust that must exist in any employer-employee relationship has been irrevocably broken?

[69]    The seriousness of a security employee’s misconduct and the repetitiveness of the offences over an extended period lead me to believe that we must do so. The principle of gradual disciplinary measures does not apply in a case such as this one, in which the misconduct is so serious that, in itself, it justifies the dismissal.

[70]    The evidence does not allow me to find that Mr. Joly's dismissal was motivated by any animosity on Mr. Gourgue’s part towards the grievor following the case of André Dupuis. I greatly appreciated the honesty and frankness of the President of the Association’s testimony that he would never have sent the UNICAN codes or the Operations Manual to someone outside the Service.

[71]    Lastly, the case of Constable C. is sufficiently different from Mr. Joly's case to justify the difference in the penalties imposed in both cases.

[72]    The grievance is denied.

Yvon Tarte,
Chairperson

OTTAWA , March 31, 2005.

P.S.S.R.B. Translation