FPSLREB Decisions

Heard at Windsor, Ontario,
April 30, 2019.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1         The grievor, Armand Matte, grieved the termination of his employment by the Canada Revenue Agency (CRA or “the employer”) on August 18, 2015.

2         On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

II. Summary of the evidence

3         The grievor was terminated as a result of the damage his off-duty conduct caused to the reputation of the CRA and to that of one of its outreach programs (the Community Volunteer Income Tax Program (CVITP)) and as a result of the negative impact it had on the voluntary self-reporting of income by at-risk people in the Windsor, Ontario, area.

4         The grievor was a CRA employee who volunteered with the CVITP, which was a program of community volunteers that the CRA specially trained in preparing income tax returns. The volunteers offered their services at clinics set up by a coordinator in the community to people whose social benefits were based on the income reported in their returns. If a member of that community did not file a return, then he or she was denied access to benefits, or they were reduced.

5         The grievor volunteered with the CVITP for many years. According to the employer, he was aware of his obligations to the CRA and to the program. He disclosed his involvement in the program pursuant to the “Conflict of Interest” guidelines, which required him to report annually any activity in which he was engaged that might pose a conflict or that did conflict with his duties as a CRA employee. It was made clear to him in response to that self-report that at no time was he to represent himself as a CRA employee while participating in the program.

6         In May 2014, the grievor participated in a CVITP clinic at the Street Help Homeless Centre (“the centre”) in Windsor, which Christine Furlonger operates. She testified about the events involving the clinic, along with the aftermath.

7         Ms. Furlonger testified as background about the circumstances that people seeking help from the centre find themselves in. Most of the centre’s clients live on their welfare or disability benefits and work towards saving up enough to cover the cost of first and last month’s rent or approximately $300. It is essential that they have a place of residence to be entitled to the residential portion of welfare benefits, including certain provincial benefits.

8         To access the financial support they need, the clients must file their income tax returns. If they do not, they no longer qualify for welfare benefits. If they do not file their income tax returns annually, they are immediately cut off from all benefits. They no longer have income, and other benefits, such as the prescription portion of the Ontario Health Insurance Program (OHIP), are cut off as well. That could be life-threatening, as it was for one of the people who attended the clinic held at the centre in May 2014. Seniors’ pensions are reduced if they do not file their income tax returns. Essentially, according to Ms. Furlonger, it is vital that returns are filed on time.

9         The centre does not have anyone experienced in preparing and filing income tax returns. When the CVITP coordinator initially approached Ms. Furlonger about holding a clinic at the centre, she was reluctant because she had heard of people experiencing problems who had used the service, which she did not want to introduce to her clients. After the coordinator, who will be referred to as “Mel” in this decision, assured her that CRA employees would conduct the clinic, Ms. Furlonger agreed to hold it on May 2 and 3, 2014. That was past the normal April 30 filing date for income tax returns, but the date had been extended that year. Mel and the grievor, both CRA employees, were to conduct the clinic.

10        The grievor contacted Ms. Furlonger before the scheduled dates for the clinic and asked if it would be possible to reschedule it to May 10, 2014, which was well past the extended filing deadline. Ms. Furlonger did not agree but was assured that since he and Mel worked for the CRA, it would not be a problem to file the returns late that were completed at the clinic. He would ensure that they would be recorded as if they had been filed on time.

11        On May 10, 2014, the grievor, Mel, and two other volunteers went to the centre for the clinic. They were provided with a workspace and access to the centre’s Wi-Fi network. Ms. Furlonger and her husband had their taxes done first to dispel any distrust the centre’s clients might have had with the CVITP. She could not say how many followed them as tax preparation was a private matter.

12        Later in the day, the grievor went to Ms. Furlonger and told her that the CVITP’s tax preparers could not connect to the CRA. He thought maybe that the CRA’s electronic tax return filing system (the system) was blocking the centre’s Internet protocol (IP) address. He told her that he had to take three files with him and that he would file them at his work. She did not understand why he had encountered Internet problems since no one else that day had encountered any. In any event, he took the three files with him, which were those of Ms. Furlonger, her husband, and a client. Ms. Furlonger did not recall whether the grievor said that he would return the tax documents once he had completed the returns.

13        In July 2014, Ms. Furlonger’s husband was advised that his Canada Pension Plan and Old Age Security benefits had been reduced to the basic amount because he had not filed his income tax return. He called the CRA and informed it that the grievor had filed his income tax return for him. It responded that it had received nothing.

14        Ms. Furlonger tried to contact the grievor to find out what had happened with the income tax returns that he was supposed to have filed. She was unsuccessful. She tried to contact him at his work, and her husband left a letter for him at the CRA’s office in Windsor. The CRA would not cooperate with Ms. Furlonger in her attempts to contact the grievor.

15        One of the volunteers at the homeless centre was familiar with the grievor and Mel via Facebook, so Ms. Furlonger reached out to both of them that way. Mel responded; the grievor did not. Mel gave Ms. Furlonger the grievor’s cell phone number, which Ms. Furlonger’s husband phoned several times, with no response. Mel also tried to have the grievor contact Ms. Furlonger (Exhibit 1, tabs 1 to 4).

16        Mel told Ms. Furlonger that the grievor had been in charge of the clinic; she had only scheduled it. She knew nothing of the whereabouts of any documents taken from it. Eventually, the grievor replied to the Facebook messages (Exhibit 1, tab 5). In those exchanges, Ms. Furlonger demanded that he tell her the location of their confidential information. She stated that he had presented himself as a CRA employee, and because of that, she had trusted him with that information. If he was not a CRA employee, she stated that she would involve the Royal Canadian Mounted Police.

17        His response was that she should not threaten him. He denied having the tax documents. He told her that another volunteer, whom he could not identify, had them and advised her to contact the CRA for copies, to help her file her income tax return. He also denied ever telling her that he worked for the CRA.

18        According to Ms. Furlonger’s testimony, the grievor’s actions at the CVITP clinic on May 10, 2014, grievously affected a client of the centre. When the grievor did not file the client’s tax return, the client was cut off from his welfare benefits. He lost his apartment and was no longer entitled to the life-saving medication he required because he no longer qualified for that portion of OHIP coverage due to failing to file his tax return.

19        When Ms. Furlonger and her husband could not get any satisfactory answers from the grievor or any help with resolving their situation or that of the centre’s client from CRA, they went to see their member of Parliament for assistance, whose office contacted the CRA and resolved the situation; the income tax returns for the three were filed.

20        In April 2015, the three affected persons received personal letters from the CRA related to their complaint against the grievor and Mel and the events of the CVITP clinic on May 10, 2014. The letter confirmed that the grievor did in fact have the tax documents that he had denied having. It offered them Equifax Canada credit protection for six years at no cost to them, and as a further measure to protect their information, the CRA placed enhanced confidentiality measures on their taxpayer accounts. Their personal taxpayer documents were returned, and the CRA apologized for the inconvenience the incident had caused them.

21        The centre’s Christmas newsletter for 2014 published a commentary about the incident under the headline “How Bureaucracy Creates Homelessness”, written by Ms. Furlonger’s husband.

22        Patrick Mineault, who was the director, strategy and services, Public Affairs Branch, CRA, in 2014, testified that he was responsible for the area in which the grievor was employed at the CRA. The first time he heard of the grievor was when he received the grievor’s confidential disclosure under the conflict-of-interest provisions of the CRA’s Code of Ethics and Conduct (“Code of Ethics”), in which the grievor disclosed his involvement with the CVITP.

23        Mr. Mineault questioned the grievor’s involvement in the program, which is aimed at making voluntary compliance with the Income Tax Act accessible for all Canadians, no matter how literate. It is a CRA program, but the CRA does not run it. Its staff provides guidance and training to volunteers who run the clinics. The CRA also provides the software that the volunteers use to complete income tax returns.

24        Mr. Mineault approved the grievor’s participation but warned him that the conflict-of-interest rules applied and that he was in no way and at no time to represent himself as working for the CRA while participating in the program. Instead, he was to identify himself as a volunteer. According to Mr. Mineault, that was done to limit the CRA’s liability within the program as it cannot produce a taxpayer’s return in a system based on voluntary compliance. It produces only the notice of assessment.

25        Mr. Mineault testified that the grievor was employed as a webmaster in the CRA’s Internet program. He was one of 100 employees scattered across the country operating in a virtual workspace and coding jobs for publishing on the Internet. He reported virtually to a team leader in Ottawa, Ontario, and to a manager in Moncton, New Brunswick.

26        Mr. Mineault received an email through the Service Complaint section from the office of Brian Masse, MP for the Windsor area. The complaint related to three taxpayers who named the grievor and claimed that even though he took their tax documents and promised to file their tax returns as part of the CVITP, he had not. Mr. Mineault referred the complaint to the CRA’s Internal Affairs and Fraud Control Division for investigation.

27        Geoffrey Broadfoot conducted the investigation. He testified that he started by educating himself on the CVITP. He spoke to the CRA program coordinator, who explained to him that for a clinic to be operated under the CVITP, it first had to be registered with the CRA, and it had to be arranged so that the CRA was aware of it. In the case of the May 10, 2014, clinic, the CRA had no record of it. The CRA was aware that the grievor and Mel were volunteers in the program, but the CRA did not recognize any clinic held at the centre on that date for CVITP purposes.

28        Mr. Broadfoot then spoke to Ms. Furlonger, who repeated the story much as it had been told to Mr. Masse’s office, according to his evidence provided to Mr. Broadfoot. Mr. Broadfoot contacted the CRA’s information technology section to determine if the centre’s IP address had been blocked from accessing the CRA’s system and was told that anyone can access it. Access records were examined for May 10 and 11, 2014, and no attempts had been made to access the CRA’s system from the centre’s IP address.

29        With that information, Mr. Broadfoot met with the grievor, Mel, and the two volunteers. Mel confirmed that she had approached Ms. Furlonger and had offered to carry out the CVITP clinic. She told Ms. Furlonger that she and the grievor worked for the CRA. Based on that, Ms. Furlonger agreed to host the clinic. The dates changed due to the grievor’s availability, and the clinic was eventually held on May 10, 2014.

30        On the day of the clinic, the volunteers were unable to login to file the tax returns, so the clinic was shut down, and the volunteers were sent home, according to the information gathered from Mel. She denied gathering any tax information, but she told Mr. Broadfoot that the grievor collected tax slips and receipts from Ms. Furlonger, her husband, and a client of the centre. According to Mel, she did not know what the grievor did with the tax documents once he left the clinic.

31        For his part, the grievor admitted that he participated in the clinic that day and that he was unable to login to the system. He denied taking any documents, although he recalled that the couple who ran the centre provided an envelope of documents to one of the volunteers from Unifor. He told Mr. Broadfoot that when he heard that no tax returns had been filed, he contacted Unifor to try to find the volunteer.

32        He arranged to meet with the volunteer at a Tim Horton’s coffee shop, through his Unifor contact, to pick up the documents. When pressed for specifics, the grievor could not recall the name of his Unifor contact, whom he was to meet, when he was to meet that person, or the location of the Tim Horton’s. When he was asked how he knew whom to approach, the grievor told Mr. Broadfoot that he had approached someone with an envelope. He received it and did not open it until he got home, where he found that it contained only blank CVITP forms. He then reportedly called Unifor again and was told that the tax documents had been shredded.

33        After speaking to the volunteers who were present at the clinic, Mr. Broadfoot met again with the grievor, told him that he did not believe that he was being truthful, and offered him the opportunity to set the record straight. The grievor declined.

34        According to Mr. Broadfoot’s testimony, the grievor phoned him back 20 minutes later and said that he thought that the documents in question were in a box in his basement and that he would take a look. He went on to explain to Mr. Broadfoot that his life was in turmoil. He was going through a divorce, and he had placed the CVITP documents in a box and would look for them. He spoke of his divorce, of the demands of having a special-needs child, of being overwhelmed, and finally of just boxing everything up and putting it in his basement.

35        Four hours later, the grievor contacted Mr. Broadfoot and told him that he had the documents. According to Mr. Broadfoot’s testimony, the grievor professed to have no idea of how they ended up in a box in his basement, even though earlier, he had said that he had put them in a box. Mr. Broadfoot testified that he instructed the grievor to mail them to him, which he did.

36        Mr. Broadfoot concluded that the CVITP’s policy is clear on handling documents given to volunteers and on any private or confidential information a volunteer might receive when preparing a tax return. All such materials are to be held securely, which the grievor had failed to do. He had also repeatedly misled the employer and the taxpayers when he denied having the documents, knowing all along that he had them. He failed to notify the CVITP coordinator that he had the documents when he found out that people were searching for them. In general, the grievor did not cooperate with the investigator, made untruthful statements, and violated the CRA’s investigations policy.

37        All that led Mr. Broadfoot to conclude that the grievor had conducted himself in a manner that brought the CRA’s reputation into disrepute. Its Code of Ethics required him to behave at all times in a way that upheld its integrity and maintained its reputation. In Mr. Broadfoot’s opinion, the grievor’s conduct had been deceitful. He did not adhere to the CVITP’s policies, undermined the principles of the program, and risked the CRA’s reputation. While off-duty, the grievor had failed to behave in a way that upheld the CRA’s integrity and maintained its reputation, and he had failed to cooperate with the internal investigation process, contrary to CRA policies.

38        Once Mr. Mineault received Mr. Broadfoot’s report, he consulted his labour relations advisor. In his view, the repercussions of the facts of the case were enormous for everyone involved. The grievor did not cooperate with the investigator and tried to conceal his actions, which led to others losing their social benefits. Mr. Mineault testified that he dissected the report in conjunction with Labour Relations to determine the appropriate discipline.

39        Mr. Mineault ensured that the grievor received a copy of Mr. Broadfoot’s report. A disciplinary hearing was held at which it was discussed. Mr. Mineault did not attend; the grievor’s manager from Moncton attended instead, with a labour relations representative. The manager reported to Mr. Mineault that the report was discussed at the disciplinary hearing and that the grievor showed no remorse, disputed the report, and apparently did not admit anything even though he had eventually produced the tax documents, which he denied ever having.

40        According to Mr. Mineault, he has to be able to trust that his employees will work in the best interests of Canadians and the employer. That, coupled with the fact that the grievor worked off-site without direct supervision, that he had lied repeatedly through the events that led to the disciplinary hearing, that he was aware of the consequences of not filing a tax return since he had started his career at the CRA in the collections area, and, most of all, that he showed no remorse and did not offer an apology to the citizens or the employer for his actions, led Mr. Mineault to conclude that working with the grievor in the future would be impossible. The bond of trust had been broken, and it could not be restored.

41        Mr. Mineault had the authority to terminate the grievor’s employment, even though Labour Relations had recommended a much-less-severe penalty. He decided to terminate the grievor’s employment because the grievor had fabricated a story and had repeatedly lied to everyone, even when confronted with the truth. This created a situation where Mr. Mineault had a complete lack of trust in the grievor. Based on the grievor’s actions and conduct during the investigation, and because the tax system works only as long as the CRA’s reputation is maintained the grievor’s continued employment was untenable. An employee who repeatedly lies and does not file a tax return acts completely against the CRA’s reputation.

42        Mr. Mineault did take into account the grievor’s years of service and previous disciplinary record. He also considered the Code of Ethics, which requires CRA employees to demonstrate respect, integrity, cooperation, and professionalism. He considered the lack of trust and the denial of the allegations in the face of numerous people telling the same story. He considered the grievor’s lack of willingness to change his behaviour and his lack of remorse. At the disciplinary hearing, the grievor did mention his divorce, but Mr. Mineault was not aware of any medical issues. According to Mr. Mineault’s testimony, there was no direct link between the grievor’s lack of remorse and any medical issues as otherwise, he would have been made aware of them.

43        It was clear that the grievor had been warned that if he participated in the CVITP as a volunteer, he was not there as a CRA employee. He denied saying that he was a CRA employee, yet it was clear to everyone involved that those at the clinic knew he was one. The only reason that the clinic was held at the centre was that it involved CRA employees. The grievor’s off-duty conduct had a direct impact on the employer and on its reputation.

44        The grievor did not appear at the hearing, nor did anyone representing him. However, entered into evidence as part of the employer’s exhibits were submissions made on his behalf by his bargaining agent representatives during the grievance process. In the submission presented at the final level of the grievance process, the summary of the facts consists of a very scant three paragraphs, notably reflecting only that “[i]t is alleged that the grievor took client files with him but never filed their tax returns; some of these clients had their benefits cut off as a result. These benefits were reinstated in the end” (Exhibit 1, tab 24).

45        The analysis of the grievance in the same document is equally brief, consisting of the following two paragraphs:

The grievor maintains that the allegations against him are untrue. The grievor states that he himself never disclosed he was a CRA employee to clients of the CVITP, but that one of the other volunteers did. This fact is confirmed in the IAFCD Report.

The Union submits that the grievor was also going through a stressful period at the time the alleged events transpired, including a divorce and being plagued by several medical issues.

The Public Service Alliance of Canada (“the bargaining agent”) who represented the grievor at the time sought to have the grievor reinstated.

III. Summary of the arguments

46        The employer submitted that, when assessing whether an imposed disciplinary penalty is appropriate, an adjudicator who finds that the penalty is within a reasonable range for the offence and that it is not outrageously inappropriate should leave it alone (see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119; and Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89). Determining an appropriate penalty is an art and not a science. Misconduct is not always clear-cut.

47        In this case, a credibility assessment is difficult as the Board heard only from the employer, but this must be tempered by the testimony of those affected. The only point at which credibility becomes an issue is the question of whether the grievor took the taxpayers’ documents, and it is clear that he did, since he produced them from a box in his basement.

48        The second question to be answered is whether he was known as a CRA employee volunteering at the tax clinic, but Ms. Furlonger’s evidence was that the only reason she agreed to hold the clinic at the centre was that she knew it would be put on by CRA employees. Even if the grievor did not make representations for his employer, he knew or ought to have known that Ms. Furlonger’s understanding was that he represented the CRA, and he did nothing to disabuse her of that understanding. In fact, when he rescheduled the clinic to May 10, 2014, he told her that it would not be a problem filing the tax returns late because he was a CRA employee, and he could ensure that they would be recorded as filed on time.

49        The employer met the framework for imposing discipline as set out in Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.R. 1 (QL). It established that the grievor is guilty of conduct worthy of discipline and that the penalty imposed was not excessive in the circumstances. He was a long-time CRA employee and a long-time volunteer who knew or ought to have known the CRA’s expectations when he became involved in community outreach opportunities. His actions risked the CRA’s reputation, proof of which is the article in the community newsletter written by Ms. Furlonger’s husband. The financial impacts of the grievor’s actions for members of a vulnerable community were grave; benefits were lost, including access to housing and life-saving medications.

50        The grievor came clean only when he was confronted with all the information and documentation that the employer had collected. Even then, he did not accept responsibility or express remorse. He claimed to be going through a period of stressful events, but he did not provide the employer any proof of them or any medical certificates as would have been expected in such situations. His Facebook interactions with Ms. Furlonger were not those of someone who was stressed but were the actions of someone covering for himself because he knew that he was not to present himself as a CRA employee.

51        Rather than bring the issue to the employer at the first opportunity, he chose to ignore it until Ms. Furlonger and the other citizens who dealt with the grievor sought the intervention of their member of Parliament. He did not behave with the integrity required of a CRA employee. Without the employer’s proactive measures in assisting the taxpayers, Ms. Furlonger’s faith in the tax system would have been permanently impaired. What should have been an internal CRA problem escalated to a member of Parliament.

52        Given the public’s opinion of the CRA, it is important that assaults on its reputation be taken seriously. The conduct of a CRA employee both on- and off-duty must not be allowed to impugn the CRA’s reputation. When dealing with off-duty conduct, common sense and measured judgement are to be applied, not empirical evidence (see Tobin v. Attorney General of Canada, 2009 FCA 254 at para. 62).

53        The seminal case in the area of off-duty conduct is Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670 (Mattis Grievance), [1967] O.L.A.A. No. 4 (QL), which sets out the test for when an employer may consider an employee’s off-duty conduct worthy of discipline. That case establishes a series of five factors to consider. The employer does not have to establish them all. It is sufficient to establish only a nexus between the impugned behaviour and the workplace (see Unifor, Local 892 v. Mosaic Potash Esterhazy Limited Partnership, 2018 SKQB 68).

54        Even CRA can suffer harm if its programs intended to help Canadians are negatively impacted. Its other programs can suffer. Voluntary compliance with tax programs can suffer.

IV. Reasons

55        Before dealing with the merits of this grievance (Exhibit 1, tab 23), I will first deal with a procedural matter related to the bargaining agent’s attempt to withdraw itself from adjudication before the hearing. It was not filed under the collective agreement; nor was it referred to the Board using a Form 20, which is used to refer grievances related to the interpretation of collective agreement articles.

56        On April 25, 2019, the then-counsel for the grievor contacted the Board, seeking a postponement sine die of the hearing scheduled for April 30 to May 3, 2019, on the basis that the bargaining agent was unable to confirm the grievor’s attendance at the hearing, despite its numerous attempts. Through its counsel, the employer opposed the request, which the Board then denied as the hearing had been scheduled since November 30, 2018, which had been more than sufficient time for the bargaining agent to contact the grievor or to notify the employer and Board if it was unable to.

57        The next day, April 26, 2019, the bargaining agent faxed a notice to the Board, advising that it was withdrawing the grievance and requesting the cancellation of the hearing. Despite the notice, the parties were advised that at the Board’s direction, the matter would proceed without the bargaining agent as the grievance had not been filed under s. 209(1)(a) of the Act and therefore did not require the bargaining agent’s approval to proceed to adjudication pursuant to s. 209(2).

58        In plain words, the grievor could have pursued the grievance on his own. The bargaining agent provided no evidence to the Board that it acted as his agent or that it acted on his behalf or with his consent in withdrawing the grievance. The Board could not and did not consider the bargaining agent’s letter of April 26, 2019, a proper notice of withdrawal.

59        A grievance filed under a collective agreement cannot proceed to adjudication before the Board without the bargaining agent’s authorization. The grievance belongs to the bargaining agent and not the grievor unless the grievance does not require its support. This grievance is not about an interpretation of the collective agreement, so it could proceed without the bargaining agent’s authorization pursuant to s. 209 of the Act, as it was in 2015, as follows:

Reference to adjudication

209 (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

1. the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;
2. a disciplinary action resulting in termination, demotion, suspension or financial penalty;
3. in the case of an employee in the core public administration,
   1. demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or
   2. deployment under the Public Service Employment Act without the employee’s consent where consent is required; or
4. in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

Application of paragraph (1)(a)

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

[Emphasis added]

60        Since this is a grievance under s. 209(1)(b) of the Act, s. 209(2) does not apply, and the bargaining agent did not have the authority to withdraw the grievance without the grievor’s consent, proof of which was absent in this case (see Godbout v. Treasury Board (Office of the Co-ordinator, Status of Women), 2016 PSLREB 5; and Owens v. Deputy Head (Department of Fisheries and Oceans), 2018 FPSLREB 56).

61        The hearing proceeded at the time and place shown on the notice of hearing, which according to correspondence received from the bargaining agent had been sent to the grievor at the last known address it had for him.

62        At the hour appointed for the start of the hearing, the grievor did not appear; nor did anyone representing him. The hearing was delayed for an hour to ensure that no one was about to appear. When no one appeared, counsel for the employer made a motion to dismiss the grievance on the basis of abandonment. The employer’s motion was denied because the grievor had been represented up to the day before the hearing and could not have been said to have abandoned his grievance. The hearing proceeded in his absence, after the delay. This decision is based on the evidence presented by the employer and on what exists in the Board’s file.

63        Based on the testimonies of the witnesses and the documentary evidence provided to me, I have concluded that the grievor did not tell Ms. Furlonger that he worked for the CRA when the clinic was being initially scheduled for the centre; that information came to her from Mel. However, in my opinion, the source of that information is not critical to a finding that the grievor violated the CRA’s Code of Ethics. By representing himself as a CRA employee when he made the representations concerning rescheduling of the clinic not being a problem and when he took the tax documents and assured Ms. Furlonger that he would file the tax returns from work he conveyed to her his link with CRA. Through this link and through his actions and deceit, he brought the CRA’s reputation into disrepute and endangered the CVITP.

64        The grievor rescheduled the CVITP clinic beyond the tax-filing deadline and assured Ms. Furlonger that it would not be a problem because he worked for the CRA. He took the tax documents in question, failed to file the tax returns as promised, lied about having the documents, and tried to implicate some unknown Unifor employee and make that person responsible for the documents, which he knew he possessed. Only when he was faced with no other way out did he acknowledge that he had taken the documents and that he had improperly stored them, contrary to the CVITP’s policy. Yet, even in the face of all that, he denied any responsibility.

65        The grievor knew or ought to have known that the people who attended the clinic at the centre saw him first and foremost as a CRA employee. He did nothing to dispel that impression other than to say after the fact that he never told anyone that he worked for the CRA. Why did he repeat it? The obvious answer was that he was cognizant of the implications of violating the conflict-of-interest warning that Mr. Mineault had given him when he declared his involvement in the CVITP.

66        Like with many things in this process, the grievor appeared to get lost in the minutia and miss the big picture, which was the impact of his actions and of his behaviours on his employer and on the community; he had been there to serve as part of the CVITP. If members of an at-risk community are afraid to accept the assistance of the CVITP for fear of losing their benefits because of its reputation and because of the impact of the commentary published in articles, such as the one in the centre’s newsletter, then his actions were devastating. He might have complied with the letter of Mr. Mineault’s warning about conflict of interest, but he did not comply with the spirit of it. The grievor’s off-duty conduct was inviolably linked to the CRA. By allowing that to happen, he violated the Code of Ethics.

67        Mr. Mineault’s testimony clearly established why he can no longer trust the grievor. I am satisfied that the employer had reasonable cause to terminate the grievor’s employment and that the termination was not excessive in the circumstances given the grievor’s lack of recognition of responsibility and lack of remorse. If any mitigating factors might have excused or explained his behaviour, no proof of them was before me.

68        As I said as follows in Walker v. Deputy Head (Department of the Environment and Climate Change), 2018 FPSLREB 78 at paras. 630 and 631:

[630] … Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119, is often cited in support of the argument that an adjudicator should not interfere with a disciplinary penalty unless it is unreasonable or wrong (see paragraph 13 of that case). Other decisions state that the penalty should be overturned only if it is excessive (see Iammarrone v. Canada Revenue Agency, 2016 PSLREB 20; and Rahim). Still in other cases, adjudicators have determined that penalties should not be overturned if they were justified (see McNulty v. Canada Revenue Agency, 2016 PSLREB 105).

[631] Essentially, in my opinion, these cases all stand for the same principle, which is that any disciplinary penalty imposed by the employer against an employee must be warranted in the circumstances, must consider all the aggravating and mitigating factors, and must be reasonable. A reasonable penalty is not excessive.…

69        For all of the above reasons, the Board makes the following order:

V. Order

70        The grievance is dismissed.

June 5, 2019.