Date: 20220824

Files: 566-02-14774, 14776, and 14777

 

Citation: 2022 FPSLREB 74

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Norman Viner

Grievor

 

and

DEPUTY HEAD

(Department of Health)

 

Respondent

Indexed as

Viner v. Deputy Head (Department of Health)

In the matter of individual grievances referred to adjudication

Before: Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Erik Gagné, Billeh Hamud, and Justine Lacroix, Professional Institute of the Public Service of Canada

For the Respondent: Jena Montgomery, counsel

Heard at Ottawa, Ontario,

August 27 to 30, November 7 to 8, and December 16 to 19, 2019,
and October 15 to 16 and 19 to 21, 2020.
(Written submissions filed November 16 and December 11, 2020,
and January 15 and 29 and February 3, 2021.)

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] Dr. Norman Viner (“the grievor”) was a full-time manager at the Department of Health (“the employer” or “Health Canada”) and also worked part-time as a physician at the Queensway Carleton Hospital (the “Hospital”) and a long-term care home. In 2016, he was suspended without pay, and on August 18, 2017, his employment at Health Canada was terminated for cause. The termination of employment was backdated by the employer to the start of the suspension without pay (August 29, 2016). Dr. Viner has grieved the investigation of his alleged misconduct (including the investigation process), the suspension without pay and the termination of his employment.

[2] Dr. Viner was Chief of Clinical Trials in the Clinical Trials Division of the Biologics and Genetic Therapies Directorate at Health Canada. The applicable collective agreement is for the Health Services group bargaining unit (expiry: September 30, 2018; “the collective agreement”), between the Professional Institute of the Public Service of Canada and the Treasury Board.

[3] Dr. Viner received approval from Health Canada for his outside employment in 2014, on certain conditions (discussed later in this decision).

[4] The employer started an investigation, that it described as “administrative”, on April 25, 2016, when it had concerns about the interference of the grievor’s work as a physician with the performance of his Health Canada duties as well as his inappropriate use of its resources (cellphone and email) for these outside duties. Dr. Viner grieved the investigation and the investigation process (on May 8, 2017). He grieved the “unjust and arbitrary nature” of the investigation as well as the “unreasonable delays”. He alleged that the investigation violated the collective agreement, employer guidelines on discipline, was an abuse of authority, a denial of procedural fairness and disguised discipline.

[5] The grievor continued to work until August 29, 2016, when he was suspended without pay. The employer stated that it based the suspension on additional information that had come to its attention through the investigation process (discussed later in this decision). He grieved the suspension on September 2, 2016. The employer’s position is that the suspension was an administrative suspension and that the Board is without jurisdiction to hear this grievance.

[6] On August 18, 2017, the grievor’s employment was terminated. The employer set the effective date of termination as the date of the suspension without pay (August 29, 2016). The letter of termination set out the following conclusions:

…

In response to your declaration of outside employment as a physician, the Delegated authority on COI [Conflict of Interest] provided you clear restrictions on how and when to conduct those duties. Although there is evidence to demonstrate that you received this official response, you argued that you did not see it, that it was one of a hundred or more emails you received while travelling at the time, that the email was not marked urgent or important, and that no training was provided to help you understand or interpret the letter. Yet, in your written submission, you stated that "it would be unreasonable and absurd for me to action the restrictions as a top priority above my other obligations or deadlines", further implying that you were aware of the restrictions in place, but chose to ignore them. There is also evidence to demonstrate that you used Health Canada resources to conduct your outside employment prior to submitting your declaration and were not forthcoming with the COI Office on this fact.

With respect to using Health Canada resources, such as email, fax machine, and your Government issued Blackberry, there is sufficient evidence that you informed your outside employer that they could contact you via these means for duties related to your outside employment. There is also evidence that these communications occurred during Health Canada hours for which you were being paid by Health Canada. This practice continued well after the letter from the Delegated authority on COI was sent to you.

Regarding the misuse of leave and travel claims, I am satisfied that there is evidence to demonstrate, on a balance of probabilities, that you were aware of proper protocols in place, but chose not to follow them.

With respect to your Gmail account, I am satisfied that there is evidence to demonstrate that you sent protected business information to your personal Gmail account and to external parties without authorization. When asked why you did not use the tools provided to you to safeguard Government information, such as web office, you stated that you sent many of these emails to your Gmail account “to review them on my home computer for convenience".

During the disciplinary hearing you presented several arguments in response to the findings of the administrative report. A summary of the key points are as follows:

· that the investigation was launched as a result of a personal vendetta against you by Ms. Parker;

· you explained that you submitted Protected information to your Gmail account for convenience;

· you did not see the May 22, 2014 email from the Conflict of Interest Office, as it was one of a 100 plus emails you received;

· the employer did not recognize your performance, workload of your team or the significant contribution you made with respect to the Ebola crisis;

· witness statements were inaccurate or out of jealousy as a result of the previous DG assigning you as lead on the Ebola file;

· inaccuracies in leave reporting were not intentional or were later denied by your Director;

· calls you received on your Blackberry during meetings were to help your employees;

· on Wednesday afternoons you were still able to do your clinic duties off site on the occasions you played in the men’s golf league; and,

· you would have corrected your behavior if management had brought these issues to your attention.

I find that the arguments you presented were not substantiated or compelling to mitigate the severity of your misconduct. Therefore, based on the information available to me, I am satisfied there is sufficient evidence to demonstrate that, on a balance of probabilities, you did not adhere to and knowingly contravened the following: the Health Canada Values and Ethics Code, hereinafter referred to as the “Code ”; the TBS Policy on Acceptable Network and Device Use; the Health Canada Acceptable Use of Electronic Devices and Networks Standard; and the Health Canada Policy on Care and Custody of Information Directive.

As a public servant you failed to conduct yourself in accordance with the Code, specifically, integrity and stewardship. As a manager, and an MD-MOF-03 physician with almost 19 years of service, you are held to a higher standard, as per the Code, and you ought to have reasonably known better. You have also failed to act in a manner that would bear the closest public scrutiny and to effectively use the public resources available to you.

In coming to a decision, I took into consideration your years of service, discipline free record and performance. However, despite the identified mitigating factors, there remain a number of aggravating factors that I cannot ignore. Of most concern is your lack of remorse or acknowledgement of the seriousness of your actions. Instead, you demonstrated an indifference to following the restrictions set out by the Delegated authority on COI with respect to your outside activities and employment. Conflict of Interest requirements are a condition of employment for public servants at Health Canada as set out in the Treasury Board Policy on Conflict of Interest and Post-Employment and the Health Canada Values and Ethics Code. In addition, you were not forthcoming with information during the investigation. There were also instances where you provided contradictory information. Accordingly, I find no reason to conclude this behavior will change.

As such, I conclude that your actions have irreparably broken the bond of trust, which is fundamental to the employment relationship. You have conducted yourself in a way that is completely incompatible with your role as a manager and employee.

Therefore, in accordance with the authorities delegated to me under paragraph12(1)(c) of the Financial Administration Act, I am terminating your employment at Health Canada, effective August 29, 2016, at the close of business.

…

 

[7] The grievor grieved the termination of his employment on August 28, 2017.

[8] At the commencement of the hearing the parties agreed that the issue of any remedies arising out a decision on the merits of the grievances would be addressed after the issuance of this decision.

II. Preliminary matter

[9] In the course of the hearing, I issued an anonymization order for the emails exchanged between the grievor’s director-general (Cathy Parker), and the grievor in 2015 about health trials. The email exchange also contained medical information about a third party (a friend of Ms. Parker’s).

[10] The principle of the public nature of evidence and hearings before the Board is well established. An anonymization order must meet the criteria that the Supreme Court of Canada established in Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835; R. v. Mentuck, 2001 SCC 76; and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, as follows (from Sierra Club of Canada, at para 53):

… (a) [the restriction] … is necessary in order to prevent a serious risk to an important interest … in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the … order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

 

[11] At the time I issued the anonymization and confidentiality order, the Supreme Court of Canada had not yet issued Sherman Estate v. Donovan, 2021 SCC 25.

[12] In this case, the anonymization order was required to protect the medical information of an individual (now deceased) who is not a party to this proceeding. The medical information of this individual is not relevant in any way to the issue that the grievor raised in relation to these emails. The important interest in this case is to prevent the dissemination of medical information of third parties, where the third party is unaware that their medical information may become available to the public in the course of open quasi-judicial proceedings and does not have an opportunity to seek the protection of that very personal information. The salutary effect of an anonymization order to protect the personal information of an unsuspecting third party outweighs any deleterious effects on the right of the public to be informed of the proceedings before the Board, since the personal information of the third party is not relevant in any way to the understanding of the issues before the Board or to the determinations that the Board is called to make in this matter.

[13] I ordered the grievor to provide a redacted version of the emails for filing with the Board and ordered the parties not to refer to her by name at the hearing or in their submissions.

III. Summary of the evidence

A. Contextual information

[14] The grievor started working at Health Canada on July 28, 1999. At the time of the events at issue in these grievances, he was the chief of Clinical Trials in the Clinical Trials Division of the Biologics and Genetic Therapies Directorate. He has been classified as a medical officer (MOF-03) since at least 2005.

[15] The grievor supervised 10 medical reviewers. His supervisor was Dr. Agnes Klein, Director of the Clinical Trials Division. She is now retired. Dr. Klein did not testify at the Board hearing. The director general of the Directorate from February 2012 until January 2015 was Dr. Cushman, who left Health Canada in March 2015. Ms. Parker was the acting director general from January to June 2015. In June 2015, she was confirmed as the permanent director general. Both Dr. Cushman and Ms. Parker testified at the Board hearing.

[16] The grievor is also a practising physician. He has worked at the hospital since 1984 and has worked in its sub-acute geriatric ward since 2004. He has also provided services to a long-term-care nursing home.

[17] Pierre Sabourin, the Assistant Deputy Minister of the Health Products and Food Branch at Health Canada, was responsible for the Biologics and Genetic Therapies Directorate. He testified that 29 out of 65 medical officers at Health Canada were also practicing physicians. He stated that there was a similar proportion of medical officers working as practicing physicians when the grievor was employed. He testified that many of these employees had compressed workweeks, to allow time for their outside clinical work.

B. Hours of work and Hospital duties

[18] The collective agreement sets out the grievor’s hours of work (at clause 8.02). The normal hours of work average 37.5 hours per week over every 4-week period. If the employer approves, hours of work can be arranged to “suit an employee’s individual duties.” The grievor also received a one-hour lunch period as well as a half-hour rest period each day. The grievor had an informal arrangement with Dr. Klein that would allow him to make his rounds at the hospital on Wednesday afternoons. In her interview statement to the investigator, Dr. Klein stated that this was the only arrangement she had with him about his hours of work. Dr. Klein also said in her interview statement that the grievor’s regular hours of work were 8:30 to 4:30.

[19] The grievor testified that he frequently exceeded these Health Canada hours of work by working evenings, weekends, and while travelling. Dr. Cushman testified that the grievor frequently performed Health Canada work in the evenings. Dr. Klein stated in her interview that physicians followed an honour system and that they were expected to make up any time lost through outside activities.

[20] Ms. Parker testified that she was not made aware of any formal flexible work arrangement for the grievor. She also testified that any telework arrangement would have had to be formalized through a telework agreement.

[21] Of relevance to these grievances was the “on-call” process at the Hospital. Dr. Fraser Miller, who was the chief of the geriatric medicine department at the Hospital from 2014 to 2016, testified about the on-call process and the administrative obligations of a doctor at the Hospital. Brenda Mulder provides administrative support for the Hospital’s geriatric department, including managing the doctors’ on-call schedule. She also testified about the on-call process and the administrative duties of a doctor at the Hospital.

[22] Dr. Miller testified that typically, roughly 30 patients would be distributed between 2 doctors. During the on-call period of 7:00 a.m. to 5:00 p.m., the doctor would not be on the unit. A doctor would be expected to visit patients daily after the patient arrived. After 5 weeks in the Hospital, the doctor was expected to visit 2 times per week. After 13 weeks, the expectation was that the doctor would visit 2 times per month. Dr. Miller stated that he would not have known the grievor’s schedule. He did not supervise the grievor directly but would see him in the Hospital’s halls.

[23] Dr. Miller testified that the obligation of a doctor on call is to be available through a pager overnight for any issues that might arise, such as fevers, falls, or deaths. It is assumed and expected that the doctor will be able to reach the Hospital within 20 to 30 minutes. Being on call is not a courtesy, Dr. Miller said. It is an obligation of all members of the Hospital department, unless arrangements have been made to exclude a doctor from the on-call roster. He testified that the doctors are provided with a stipend for being on call.

[24] In cross-examination, Dr. Miller agreed that it was possible to receive no calls when on call but that it was very rare. He could not recall such an occasion.

[25] The on-call schedule is prepared once per year, although it can be modified, depending on the circumstances of each doctor.

[26] Dr. Miller also testified that doctors would be expected to attend 5 meetings per year out of 10 scheduled that typically were held from 8:00 a.m. to 9:00 a.m., although some were longer. They were to discuss Hospital issues and to share information, and they had an educational component. He testified that typically, the business portion of the meeting took approximately 30 to 40 minutes, and when the education sessions were scheduled, they were approximately 1 hour. He did not know if the grievor attended the required number of meetings, but he did not recall meeting with him to discuss any shortfall. Ms. Mulder did not recall any concerns about the grievor’s attendance at the meetings.

[27] In cross-examination, Dr. Miller agreed that it was possible to leave meetings early but that doing so was very unusual. He also testified that some meetings did end early. Ms. Mulder testified that not all doctors stayed for the full hour-long meeting and that some might leave 15 to 20 minutes early.

[28] The on-call schedule at the Hospital included Fridays from noon to Mondays at 7:00 a.m. Dr. Miller testified that the schedule was changed at some point because noon was too early for some doctors. However, the Friday on-call hours were in place at the times relevant to these grievances.

[29] Dr. Miller testified that family conferences were informal meetings with the treating team and family members to discuss either a discharge or problems occurring with a patient. These meetings were scheduled for a specific time and typically lasted about 30 minutes. Dr. Miller stated that there might be some paperwork after the meeting if the patient was discharged. The doctor would also document what was discussed at the meeting.

[30] Ms. Mulder also testified about the holiday schedule (Christmas to New Year’s Day) for the geriatric department. The grievor was listed on the schedule for 2014. He was not required to be in the Hospital for that entire time. He would be called if something came up. Ms. Mulder said that he would be required to see patients at some point in the day and would be paged if anything came up. She also testified that he could arrange for some other doctor to check in on his patients.

C. Code of Conduct and the grievor’s restrictions

[31] Health Canada has a values and ethics code (“the Code”) that applies to all its employees. Ms. Parker testified that the Code is mentioned in the letter of offer received by all employees and that employees are provided a copy of it. The grievor’s letter of offer was not entered as an exhibit at the Board hearing. Ms. Parker testified that all employees have access to the Code through the Health Canada intranet. She also testified that employees are reminded of their obligations through the annual request for a conflict-of-interest declaration.

[32] The Code contains the following general responsibility and duty: “refraining from the direct or indirect use of, or allowing the direct or indirect use, of government property of any kind…for anything other than officially approved activities”. It also contains the following guidance on outside employment:

Public servants may engage in employment outside the public service and take part in outside activities unless the employment or activities are likely to give rise to a real, apparent or potential conflict of interest or would undermine the impartiality of the public service or the objectivity of the public servant.

Public servants are required to provide a report to the Deputy Minister (or delegated authority) when their outside employment or activities might subject them to demands incompatible with their official duties and obligations, or cast doubt on their ability to perform their duties or responsibilities in a completely objective manner. The Deputy Minister (or delegated authority) may require that the outside activities be modified or terminated if it is determined that a real, apparent or potential conflict of interest exists.

 

[33] Although he had been working at the Hospital for many years, it was only in 2014 that the grievor was required to complete a “Conflict of Interest” declaration related to his outside employment. After completing it, he also answered questions put to him by Health Canada’s conflict-of-interest office. He was asked if he would use his working hours at Health Canada for anything related to his outside employment. He replied: “My work is outside the hours of my working hours at Health Canada and involves being ‘on call’ or doing ‘rounds on patients’ evenings and weekends”.

[34] In a letter sent to the grievor on May 22, 2014 (“the conflict-of-interest letter”), the Health Canada conflict-of-interest office approved him working as a physician for an outside employer (the Hospital and a long-term care home), with the following restrictions:

· That you do not use your working hours at HC for the performance of your outside employment;

· That you do not use any of HC’s resources (e.g: data, information, confidential material, documents/presentations, email account) or equipment (e.g: computers, photocopiers, office supplies) to address your outside employment;

· That you must not share any confidential information or data you would have been privy to during your official functions at HC;

· That you must not identify yourself as an employee of HC for any of your duties related to your outside employment; and

· That you must not allow your outside employment to impair your availability, capacity or efficiency with respect to the performance of your official HC duties.

 

[35] The letter also contained the following summary of some of the principles set out in the Code:

A public servant’s general responsibilities and duties include:

a) Taking all possible steps to recognize, prevent, report, and resolve any real, apparent or potential conflicts of interest between their official responsibilities and any of their private affairs;

b) Unless otherwise permitted in this chapter, refraining from having private interests, which would be unduly affected by government actions in which they participate, or of which they have knowledge or information;

c) Not knowingly taking advantage of or benefiting from, information that is obtained in the course of their duties that is not available to the public;

d) Refraining from the direct or indirect use of, or allowing the direct or indirect use of government property of any kind, including property leased to the government, for anything other than officially approved activities;

e) Not assisting private entities or persons in their dealings with the government where this would result in preferential treatment of the entities or persons;

f) Not interfering in the dealings of private entities or persons with the government in order to inappropriately influence the outcome;

g) Maintaining the impartiality of the public service and not engaging in any outside or political activities that impairs or could be seen to impair their ability to perform their duties in an objective or impartial manner; and

h) Ensuring that any real, apparent or potential conflict that arises between their private activities and their official responsibilities as a public servant is resolved in the public interest.

 

[36] In his written submissions for the departmental disciplinary hearing, the grievor stated that he did not recall seeing “any documentation concerning possible restrictions” on his work as a practising physician. He recalled that the focus in his conflict-of-interest declaration was solely on his clinical activities and that “[e]ither one was in conflict or was not in conflict with this new process”. He did not recall receiving the email that contained the letter setting out his conflict-of-interest restrictions. He stated that the following facts supported his position that the restrictions were not brought to his attention:

· It was sent three months after completing his declaration.

· It was sent to him while he was on leave, and he left on a work trip shortly after returning to work.

· It was not marked as urgent or important.

· It did not request an acknowledgement or response.

· There was no meeting request.

· There was no training or support to help with “the understanding and interpretation of this new process”.

 

[37] In his written submissions to the employer, the grievor then stated that even had he read this “unmarked email”, it was unreasonable to expect that he would be able to come into compliance immediately upon receiving notice of the restrictions. He stated that if immediate compliance was “of such dire importance and consequence, this should have been made clear” in a face-to-face meeting.

[38] Ms. Parker reported that at a meeting on September 21, 2016, the grievor stated that once he had received the conflict-of-interest letter of May 22, 2014, he told a pharmacy to stop sending him prescriptions at the Health Canada fax number. The grievor’s testimony was that he asked the pharmacy to stop sending prescriptions after receiving the annual request for a conflict-of-interest update in May 2015.

D. The investigation and the suspension

[39] In 2016, some employees raised concerns with Ms. Parker about the grievor often being late to, unprepared for, and frequently answering his cellphone during meetings. On March 30 and April 1, 2016, she met with the grievor to discuss her concerns about his outside employment as a practising physician interfering with his Health Canada duties.

[40] On April 1, 2016, Ms. Parker emailed the grievor, summarizing their conversations as follows:

On March 30, 2016, I met with you to discuss concerns brought to my attention that you were conducting outside employment during business hours. In this meeting you indicated that:

· You do take phone calls about patients during working hours, sometimes to give discharge orders over the phone, and review patients’ test results. You indicated that you did not view this as a conflict but simply normal work duties. Although the letter you received from the Conflict of Interest office states that Health Canada time and equipment should not be used for the conduct of your duties as a physician you indicated that you did not understand the letter to mean that phone calls about patients should not be taken during working hours.

· You said that you use your government blackberry for this purpose but if that is a problem you can get a separate [one]

· You also indicated that your calendar will show many references to you being on call, but this always means after 5pm.

On April 1, 2016, you requested another meeting with me. During this meeting you admitted to:

· You confided that “a few months ago” you were required to cover for another physician who had had a heart attack. Because of this you said there was a period of “increased activity” related to your non-Health Canada duties.

· You also asked me whether during an examination of your phone records would it be possible for calls indicated as “unknown caller” to be identified as you have received quite a few of those. I replied that I did not know the answer.

 

[41] Ms. Parker asked the grievor, “effective immediately”, to cease all activities related to the duties of his outside employment during regular workdays.

[42] In a reply to this email on April 4, 2016, the grievor stated that it was an accurate reflection of their discussion, with the exception of the reference to unknown callers, as “most of the calls known as ‘unknown caller’ are likely the Hospital as they use radio phones that are not able to be identified…”.

[43] On April 25, 2016, the grievor was advised of an investigation, that the employer described as “administrative”, into the following allegations:

· A failure to fulfill your obligations as a public servant, in accordance with the Health Canada Values and Ethics Code, to prevent, manage and/or resolve a conflict of interest situation; and

· A breach of the Treasury Board Policy on Acceptable Network and Device Use and the Health Canada Acceptable Use of Electronic Devices and Networks Standard.

 

[44] The period covered by the investigation was from the date of the conflict-of-interest letter (May 22, 2014). The investigator was Michelle Toutant, a labour relations advisor with Health Canada who testified before the Board.

[45] The employer retrieved the grievor’s email accounts and phone records, along with his employer-issued laptop. Ms. Parker advised him that during the investigation, he was to continue to carry out his Health Canada duties. He was also advised that after the investigation was completed, he would have an opportunity to present “clarifications or extenuating circumstances” that he felt had not been addressed in the investigation. After this opportunity, the letter stated that management would render a final decision and that if the allegations were founded, “administrative and/or disciplinary measures may be taken up to and including termination”.

[46] The grievor was provided with a copy of a draft preliminary investigation report on July 27, 2016. It set out the following preliminary findings:

· The grievor gave his Health Canada email address and phone number as his point of contact for the Hospital.

· He was “on call” at the Hospital for specified hours that overlapped with his Health Canada work hours.

· He had 17 meetings at the Hospital during his Health Canada working hours.

· He used Health Canada’s network and devices for email and phone communications to and from the Hospital.

· He made personal long-distance calls on his Health Canada device and incurred $4516.29 in roaming and long-distance charges.

· He was absent without leave on 24 days between August 2014 and February 2016.

 

[47] The grievor provided a response to the preliminary investigation report on August 16, 2016, in which he stated that the findings were “disconcerting because they are factually inaccurate and/or incomplete”.

[48] The grievor was suspended without pay on August 29, 2016. In the letter of suspension, Ms. Parker relied on the following information to support the suspension:

· The default of a clinical trial on April 28, 2016, due to the grievor’s alleged inaction;

· At the time of the default, he was not on approved leave and provided no explanation for his absence;

· The discovery of an email exchange to his personal email account about the review of a clinical-trial application (classified information that should not have been sent to a personal email account); and

· The discovery of six medical prescriptions, addressed to the grievor, at a Health Canada fax machine.

 

[49] The letter included the following rationale for the suspension:

…

Given the circumstances, management has determined that your continued presence in the workplace, and continued access to the network, presents a reasonably serious and immediate risk to the legitimate concerns of the Department including the health and safety of Canadians.

Further, your actions are such as to be potentially harmful or detrimental to Health Canada’s general reputation. As such, you are hereby suspended indefinitely without pay.

…

 

[50] The grievor was told that he would have an opportunity to provide submissions if administrative or disciplinary measures were warranted. He was also advised that if disciplinary measures were not warranted, he would be reintegrated into the workplace and compensated for the period of the suspension.

[51] In her decision on the grievance against the suspension, Ms. Parker acknowledged that she was made aware of the clinical-trial default at the time that it occurred (in April) and stated, “… this incident is no longer in consideration when assessing a continued need for administrative suspension and will be addressed through the course of the investigation.”

[52] In her grievance decision, she also noted that although the prescriptions found on the fax machine and the grievor’s use of personal email dated to 2014 and 2015, those prescriptions and emails were brought to her attention only in the week of August 22, 2016. She also stated that efforts to ensure his continued presence at work, including closer supervision, were considered but that any duties at his level required access to confidential information. She concluded as follows:

…

Additionally, I must advise you that since the start of your administrative suspension, more evidence has been adduced to support that these incidents are not isolated in nature. You will receive the opportunity to respond to this new information through the course of the investigation.

Based on the information available, I conclude the employer’s intent of the suspension was, and continues to be, to manage the risk associated to your continued presence in the workplace, and access to CBI [Confidential Business Information], until there is a full understanding of the extent of the breach.

…

 

[53] Ms. Parker testified that the primary reason for the suspension was the grievor’s continued use of his personal email account for Health Canada work. In particular, she noted the email of January 20, 2015, which contained a link to a database as well as the password. She testified that the discovery of the faxes also influenced her decision to suspend him.

[54] Ms. Parker testified that the risk to Health Canada was the lack of confidence that the grievor was appropriately protecting Health Canada’s confidential information. As a result, she concluded that he could not be in any role that would require access to protected information. She testified that if confidential information were compromised because it was sent to his personal email account, it could open Health Canada to liability, or companies could decide not to do clinical trials in Canada. She stated that a company’s decision not to market a drug in Canada could affect the health and safety of Canadians if it resulted in Canadians being cut off from important medication. She also testified that not protecting confidential information would reflect badly on Health Canada as a credible regulator.

[55] The grievor was provided with a revised preliminary investigation report on December 13, 2016. The grievor was given an opportunity to provide his comments on the report. He provided his response, through his representative, on January 26, 2017. In that response he provided the names of three individuals, including Dr. Cushman, who he stated could support his position. The investigator contacted Dr. Cushman only as she concluded that the other two individuals could only speak to matters that were outside the scope of the investigation. Further information was provided by the grievor’s representative about the other two individuals on March 23, 2017, and both were provided with questions by the investigator. Those individuals provided their responses on April 11, 2017. Only Dr. Cushman testified at the Board hearing.

[56] The final investigation report was dated May 8, 2017, and set out the following findings of misconduct:

· Transmitting “Protected B” information to a personal email account

· Using Health Canada resources for outside activities

· Performing outside activities during Health Canada hours.

· Failing to follow appropriate leave approval processes

· Playing golf instead of doing clinical hours at [the Hospital]

 

E. The alleged misconduct

[57] The investigation of the grievor’s Health Canada phone records showed 1950 unidentified incoming calls. The records also showed 132 outgoing calls to the Hospital, 14 to a long-term-care nursing home, and 8 to pharmacies. The grievor also used his phone while travelling. The investigation identified over $4000 in roaming charges and long-distance charges that were not related to his Health Canada duties. The phone records and phone charges were introduced as exhibits at the Board hearing.

[58] The grievor was scheduled to be on call at the Hospital on Friday afternoons, starting at noon, and was also scheduled for one Christmas Eve (a Wednesday) from 7:00 a.m.

[59] Ms. Toutant reviewed all the emails sent to and from the Hospital during the relevant time period for the investigation. Those emails were also entered as exhibits at the hearing of these grievances. Her review indicated that the grievor was scheduled to attend meetings at the Hospital 17 times either over the lunch period or in the afternoons. There were also invitations to monthly Hospital staff meetings, on Wednesday from 8:00 a.m. to 9:00 a.m.

[60] In his response to the preliminary investigation report, the grievor noted that given the nature of his work, he received and made a significant number of outside calls with Health Canada clients. He stated that although calls from the Hospital would show up as “unknown caller”, not all unknown callers were from the Hospital. He wrote that much of his Health Canada work involved calls from investigators and physicians who worked from hospitals and offices that would frequently display as “unknown caller”.

[61] On April 8, 2016, while in conversation with Ms. Parker, the grievor’s cellphone rang, and he confirmed to her that the call was from a former patient. In his written submissions provided at the departmental disciplinary hearing, he stated that this call was from a former patient whom he had not heard from in over 20 years (prior to his employment at Health Canada). He later called back and advised the former patient that he could not assist that patient as he was no longer in general practice.

[62] The grievor also used his Health Canada cellphone while outside Ottawa and incurred roaming and long-distance charges (which I will refer to collectively as phone charges). The investigation focused on phone records from July 2014 to March 2016. It concluded that he incurred up to $4407.55 in phone charges that were not related to his Health Canada duties. The phone statements and charges were provided as exhibits before the Board. The phone statements were verified by the department’s Office of Audit and Evaluation.

[63] In his written submissions at the departmental disciplinary hearing, the grievor stated that 11 of the phone statements contained “under $113 in total” and were therefore “too small to be of relevance”. He then reviewed the other 10 phone statements and identified $3712.54 of charges. He stated that he “unwittingly accumulated” these charges while traveling. He also stated that he “regrets those charges and would have changed his behaviour had he understood the costs involved”. He also noted that administrative assistants were responsible for monitoring these costs and that they failed to bring them to his attention.

[64] Dr. Cushman testified that he brought his phone with him on vacation since he had to be accessible. He testified that it was his practice while at Health Canada to review the phone bill and to identify personal calls. He testified that it was his personal responsibility to pay back the employer for those personal calls, as well as roaming charges, when he travelled for vacation.

[65] The department’s policy on the use of work cellphones (“Procurement and Usage of Wireless Voice Devices Policy”) allows for personal use in certain circumstances. The policy provides for conditional authorization to use a smartphone for “a limited amount of personal use”, if that use is caused by work circumstances. Under that policy, employees are required to pay the amount of accumulated personal use exceeding $50 during each calendar year. The policy places the onus on employees who use a cellphone to review their monthly electronic wireless usage report and to identify the cost of their personal use. The policy also notes that an employee can be subject to disciplinary action should the requirement to repay the non-official personal use of his or her wireless voice device or services not be fulfilled by the end of the calendar year.

[66] Dr. Klein told the investigator that at one time, she thought that the grievor paid for his personal use. There is no evidence that the grievor paid for personal use of his phone during the period of review by the investigator.

[67] In his response to the draft preliminary investigation report, the grievor stated that he understood that incurring long-distance charges was acceptable for phoning home while away on Health Canada business or to deal with workplace concerns when on personal travel. He wrote that on his trip to Italy of September 18 to 26, 2015, a significant portion of the charges was related to a call he received relating to a clinical trial. He also noted that on his trip to Salt Lake City, Utah, of February 21 to 24, 2016, he participated in a work-related teleconference call. He wrote that he also used his phone for work-related calls when in Florida.

[68] The grievor sent 2 emails to the Hospital (on December 2, 2015, and January 11, 2016), stating that it should communicate with him via his Health Canada email address. The investigation found that 244 emails were sent to and received from the Hospital (along with 33 responses from him). There were also 139 emails related to absence notifications or coverage changes to all physicians with respect to the Hospital’s on-call schedule. Forty emails were related to geriatric rounds, and a similar number were related to monthly Hospital team meetings. They were all introduced as exhibits before the Board.

[69] Dr. Cushman was not aware that the grievor had provided his Health Canada email address to the Hospital, but he testified that he was not surprised that the grievor did so. Dr. Cushman also testified that he and other Health Canada employees used their cellphones for a mix of both work and personal things. He testified that there was a “spillover” in using a personal email address for work but that as a rule, he tried to keep his work and his personal email distinct. He stated that there was “not an ironclad wall between the two” email accounts. When travelling, he stated that there might well be more spillover between the two accounts, especially if one could not gain access to government files. Dr. Cushman also testified that it was simple and efficient to have one device rather than carrying two — one for work use, and one for personal use.

[70] Dr. Cushman was interviewed about the grievor’s hours of work as part of the investigation. He stated that he was not the grievor’s direct supervisor and he assumed that the grievor had an arrangement with Dr. Klein. Dr. Cushman told the investigator that he understood that the grievor did his work at the Hospital before coming to Health Canada and then again at the end of his Health Canada work day. Dr. Cushman stated that it was common knowledge that being on call involved coverage before 8 a.m. or after 5 p.m. Dr. Cushman also said he did not doubt that the grievor would do some Hospital work by telephone or email during his Health Canada hours of work in order to ensure that his on-call duties would be compatible with his Health Canada travel schedule.

[71] Dr. Cushman told the investigator that he would not consider some “relatively rare emails about hospital rounds, other educational information or, the odd patient family meeting to be an abuse of HC equipment or time”.

[72] Dr. Cushman testified that he never saw the grievor doing outside work in his presence. He also found the grievor very easy to reach. He also testified that he did not have much “interface” with the grievor until the Ebola vaccine file (discussed later in this decision).

[73] The investigation found 25 emails confirming or reminding the grievor of scheduled appointments with patients during his Health Canada working hours. In July 2014, the grievor had 4 “family conferences” over the lunch period (either at 12:00 or 12:30). In September 2014, he had a scheduled family conference for 11:30 a.m. In October 2014, he had afternoon meetings scheduled at 1:00 p.m. or 2:00 p.m. In November 2014, he had a meeting scheduled with a patient at 2:15 p.m. In April 2015, he had a scheduled meeting at 9:30 a.m. In January 2016, he had a meeting scheduled at 12:45 p.m.

[74] In his response to the draft preliminary investigation report, the grievor wrote that 13 of the 17 meetings identified in the report were “clearly identified as being held during personal time (i.e. lunch period) or were authorized”. He stated that the other 4 meetings “were either, inaccurate, unattended, rescheduled or incorrectly noted in the calendar and held after work hours”.

[75] The Hospital’s on-call schedule stated that the grievor was “on-call” commencing on Fridays at noon. In his written submissions presented at the departmental disciplinary hearing, the grievor stated that this was a “courtesy practice in the rare event that physicians on another ward had to leave early”. He stated that he had never been called in urgently on a Friday afternoon. He also stated that the chances of being on call interfering with his Health Canada duties were “extremely limited”. Dr. Miller did not agree that being “on call” was a courtesy.

[76] In his response to the preliminary investigation report (dated August 16, 2016), the grievor stated that he had used his Health Canada email address as a “secondary contact”. He stated that he had “been of the understanding” that there were no issues with doing so. He noted that the number of emails over the period reviewed represented 2 to 3 per week out of the more than 1000 emails he received in any week. He also noted that many of the emails were notices of educational opportunities, while others enabled him to ensure that there were no conflicts with his Health Canada duties. He also stated that he responded only to a handful of these emails, “which were simply scheduling matters and took virtually no time away from [his] workday”.

[77] Also in his response to the preliminary investigation report, the grievor stated as follows, referring to both Dr. Klein and Dr. Cushman: “[They] have understood that there would be occasions where I am required to answer a timely call regarding a patient and/or hold very brief clinical meetings during the workday”. He stated that these brief calls were “often to simply clarify a written prescription” and that any longer meetings were taken during breaks and his lunch hour. He also wrote that “on occasion”, when this was not possible, the time away from his Health Canada duties was “easily paid back with work from home” as provided for in his flexible work hours and the collective agreement. He stated that Dr. Klein supported this arrangement. He stated that these meetings represented a “minimal amount of time” and that they had not interfered with his ability to complete his Health Canada duties.

[78] In his response, the grievor also stated that management had been aware of him using his work phone for both professional and personal purposes. He stated that it had never previously been an issue and that when Ms. Parker had raised it, he complied and bought a phone for personal use.

[79] The investigation showed that the grievor sent to his personal Gmail email account:

· 11 emails containing “Protected B” information and stakeholder trade secret information;

· 1 email with the drug submission tracking system, access information, including password and username; and

· 113 emails related to his duties at Health Canada.

 

[80] These emails were entered as exhibits at the Board hearing.

[81] According to the Health Canada “Care and Custody of Information” guide, Protected B documents, if disclosed without authorization, “could cause serious injury to an individual, organization or government”. The transmission of Protected B documents to or from a personal email such as Yahoo and Hotmail is prohibited, according to the guide.

[82] The Health Canada “Use of Electronic Networks” policy sets out the acceptable use of electronic networks. Network users are permitted to make personal use of electronic networks on personal time, provided that no additional cost is incurred by the department, the use reflects well on the government, and the use remains compliant with the policy. The policy also sets out unacceptable uses. The unacceptable use listed that is relevant to these grievances is sending classified or designated information on unsecured networks, unless it is sent in encrypted form.

[83] Ms. Parker testified that the policy on acceptable use was communicated to employees “frequently” and that it was posted on the intranet. Ms. Parker testified that information that was classified as “Protected B” includes clinical trial applications. These applications contain confidential information, especially about the manufacturing process. She testified that because the pharmaceutical industry is competitive, companies are concerned about the confidentiality of their data. If confidentiality was breached, she stated that the government could face liability. If companies are not confident that confidentiality is being protected, they could also decide not to do clinical trials in Canada which would limit access to treatment for Canadians. She also raised the concern that confidential information could be taken out of context by anti-vaccination groups.

[84] In his written submissions presented at the departmental disciplinary hearing, the grievor admitted that he sent emails containing Health Canada work to his home “for convenience, thinking that they were secure”.

[85] One email that was sent to the grievor’s home email address contained a password to the Health Canada drug-submission tracking-system database. The database contains information on all drug submissions, including details about the drug, the nature of the submission, the filing date, and the status.

[86] In his written response presented at the departmental disciplinary hearing, the grievor stated that “in retrospect”, he realized that this could be perceived as a release of “Protected B” information. He explained that he did not consider that this tracking system was a significant security risk “for a number of reasons”. He stated that he understood that the database had only tracking information and none of the actual drug-submissions data. His response continued as follows:

Dr. Viner did not consider that this information could be utilized to access other less pertinent information to Dr. Viner, such as, all NDS submissions. He did not consider this at the time of sending this home as he was focused solely, on how it might be used to impress senior management with the Division’s pressing need for additional reviewers.…

This is a single email … that may have the appearance of being questionable. Dr. Viner regrets that he sent it to his Gmail address. It should be stressed that this was only done as a reminder to think more about the system and how to utilize it as it was Dr. Viner’s practice to frequently work on projects from home.…

…

 

[87] In his investigation interview, Dr. Cushman was asked about the grievor using his personal email for a clinical-trial review. Dr. Cushman said that he would be surprised if the grievor did so, “except on a very exceptional basis”, because it is generally easy to use a Health Canada email account remotely from home or elsewhere.

[88] In 2016, 7 medical prescriptions were retrieved from a Health Canada fax machine in a common area, which had been faxed to the grievor from a pharmacy, as well as a record of 13 outgoing faxes to the same pharmacy. The grievor testified that 4 prescriptions were sent to him at this fax machine, not 7. Two were addressed to different doctors, and 1 had his name crossed out.

[89] Ms. Parker reported that at a meeting on September 21, 2016, the grievor stated that once he had received the conflict-of-interest letter, he told the pharmacy to stop sending him prescriptions at that fax number. She thought that he was referring to the initial conflict-of-interest letter from 2014, but he testified that it was his annual reminder letter of 2015. Ms. Parker checked with the employees who reported the faxes, who confirmed that faxes had been found in 2015, after the initial conflict-of-interest letter from 2014. She testified that the employees had not retained those faxes.

[90] Dr. Cushman testified that the grievor and his colleagues worked in an environment of high confidentiality due to clinical trials. He assumed that any fax would have a cover letter and individuals would “mind their own business and carry on”. He also testified that he used the fax machine for personal reasons not related to Health Canada.

[91] A review of the faxes entered as exhibits before the Board showed that one was sent on June 6, 2014. The others entered as exhibits all predate the initial conflict-of-interest letter of May 22, 2014. The record of outgoing faxes includes only those sent in February and March 2014. The employees who told Ms. Parker about other faxes found in 2015 did not testify at the Board hearing.

[92] The investigation found that the grievor had failed to submit 28 days of leave to account for absences related to personal reasons. This was based on comparing his phone records to the leave recorded in PeopleSoft, the online leave-approval software program used at Health Canada.

[93] There were no leave entries for the following days in the database, in the leave-approval software program, when the grievor was outside Ottawa:

1) August 18, 2014 (Vancouver, British Columbia, and San Francisco, California): 1 day;

2) January 8 to 14, 2015 (Florida): 4 days (1 day was approved);

3) April 14 to 25, 2015 (Poland and Israel): 9 days;

4) June 27 to July 3, 2015 (France): 4 days;

5) December 16 to 18, 2015 (Florida): 2 days (1 day was approved);

6) January 27 to 30, 2016 (Florida): 3 days; and

7) February 21 to 24, 2016 (Salt Lake City): 4 days.

 

[94] The employer also maintained that the grievor attended a conference in France in 2016 without proper leave approval, resulting in an unauthorized absence on June 27, 2016.

[95] The grievor testified that Dr. Klein was aware of his absences. Dr. Klein was interviewed for the investigation but did not testify before the Board. In her interview, she was asked to review a list of the grievor’s trips and confirm whether they were personal or work related. She confirmed that all the trips were personal but that she was not sure about the trip to France in 2015.

[96] The grievor and three of his staff attended a conference in Toronto, Ontario, from September 11 to 13, 2014, without obtaining prior travel authorization. Ms. Parker stated that this trip was not included in the investigation. Ms. Toutant testified that this incident was not included in the final investigation report because Dr. Klein had spoken to the grievor about the incident and had reminded him of his responsibilities. Ms. Parker testified that Dr. Cushman did not think that discipline for this incident was necessary because he was satisfied that the grievor would respect the rules in the future. In his testimony, Dr. Cushman stated that it was very important for Health Canada to have the grievor and staff members attend that conference. He agreed that the grievor should have obtained travel authority to attend.

[97] After the trip to Toronto, Dr. Klein sent an email to the grievor, stating, in its entirety: “There will be SERIOUS CONSEQUENCES to you for this one” [emphasis in the original]. The grievor replied that another section took the lead on this conference and that “we were advised by HR that they were taking it up”. Dr. Klein responded as follows:

It may be that the “group” or multiple attendance rationale was being done by [the other section]. That DOES NOT EXCUSE you or your staff (and the guidance of what to do is YOUR obligation) to have each and every one of them file a travel request, especially when those inviting do not cover land transportation that we need to pay. Your staff, as a result, is [sic] out of pocket money. Plus they were not protected in case of (heaven forbid) accidents or unforeseen contingencies.

You have an obligation to know what to do to your staff, Health Canada and even yourself.

[emphasis in original]

 

[98] In his written submissions presented at the departmental disciplinary hearing, the grievor explained some of the absences, as follows:

Aug. 18, 2014 ‘1 day’. Without my calendar Dr. Viner cannot recall … what occurred this day. It is possible that there was an event that I did not attend and just neglected to correct my calendar entry.

Jan. 8-14, 2015 ‘4 days’. Dr. Viner worked on various projects and caught up on reading for work. This leave was submitted before leaving and denied upon my return by Dr. Klein. This was how, on occasion we accounted for leave time. Dr. Klein recognized that in light of Dr. Viner’s father’s death 3 months prior that it was reasonable for him to work in Florida and enable his mother to travel. Without access to his files and records Dr. Viner cannot provide the specifics of the projects he worked on.

April 14-25, 2015 9, [sic] days. The leave system was down because it was year end when Dr. Viner tried to do his leave for this trip. Accordingly, Dr. Viner did his leave by paper method and left it with [an assistant]. It was his intent to file this in the leave system upon his return.…

…

Dr. Viner regrets not completing the leave upon his return. This is not surprising however, as Dr. Viner travelled twice more in May and June.

…

Dec. 16-18, 2015, “2 days” – Dr. Viner worked on various projects and caught up on reading for work. This leave was submitted before leaving and then ‘denied’ upon my return by Dr. Klein. This was how, on occasion, Dr. Klein accounted for leave time that involved travel to the USA. Dr. Klein did this in order to insure that Dr. Viner was protected in case of an incident happening (accident or illness) while in the USA. … Without access to his files and records Dr. Viner cannot provide the specifics of the projects he worked on.

…

 

[99] The investigation found that the grievor attended symposia in France in 2015 and 2016 without following the approval process, resulting in unauthorized absences on June 29 to 30, 2015, and June 27, 2016. In his written submissions provided at the departmental disciplinary hearing, the grievor explained his absences as follows:

Both the 2015 and 2016 meetings were specifically directed toward to [sic] leading academic oncologists globally. It was a significant honour to HC and Dr. Viner to be invited to this meeting.

The intense schedule for 2015 consisted of 2 full days with 10-12 hours of scheduled activities. This meeting had limits on travel and was funded by the sponsor. Attendance was fully supported by Dr. Klein.

In order to stay within the budget Dr. Viner risked his own capital and booked flights over a Saturday to obtain the best fare in advance of receiving approval for this travel.

In addition, Dr. Viner felt justified in doing this as he was giving up a national holiday (both trips required travel over Canada Day, to attend the meeting) and because Dr. Viner was dedicating so much time to attending preparing and planning a presentation afterwards that taking an extra couple of days was more than justified.

For the 2016 meeting Dr. Viner was invited into the ‘inner circle’ to attend a planning session for upcoming oncology trial proposals and planning. This trip therefore involved 3 days of intense meetings rather than two. Again, in order to stay within the budget Dr. Viner risked his own capital and booked flights over a Saturday to obtain the best fare.

…

Furthermore, Dr. Klein supported and approved these leave requests.

 

[100] Dr. Klein did not mention any arrangements for personal leave in her interview with the investigator.

[101] The grievor testified that he submitted his leave application on paper for his trip to Poland and Israel since the electronic leave system was not working. He testified that the employer lost the paper copy. He testified that the online leave approval system was offline at the same time each year (just before the end of the fiscal year). Ms. Parker testified that when the system was down, the process required an employee to submit a leave application on paper to the supervisor, and once approved, it would be sent to a compensation advisor for processing. She also testified that employees were able to view their leave balances and approved leave requests in the system when the leave approval system was back online.

[102] The grievor testified that on his trips to Florida, he was caring for his mother, who was ill. He stated that he worked remotely during these trips. Ms. Toutant testified that he had not mentioned this during the investigation process. Ms. Parker testified that teleworking required managerial approval.

[103] With respect to the other days included in the allegations from 2014 to 2016, the grievor testified that PeopleSoft is able to identify who “approved-amended” the leave application, and the employer did not identify which leaves it subsequently “approved-amended”.

[104] The grievor also stated that he was on “duty travel” for some of the trips. Ms. Toutant testified that he did not mention this in the investigation. Ms. Parker testified that duty travel was travel while on government business and that travel to conferences was not considered duty travel. She also testified that there was no blanket authority for travel for employees, other than for inspectors for site visits within Canada. Any blanket travel authority had to be approved by the assistant deputy minister. Ms. Parker testified that all travel was required to go into a “travel plan”, which was necessary to provide a cap on travel expenditures. She testified that a travel plan was also required when a third party paid the travel expenses. She said that this was due to the need to be fair to others and that it was a “perception issue”.

[105] The grievor testified that Dr. Klein approved his conference leave request to attend the Paris conferences in 2015 and 2016. He noted that travel to international conferences was included in his job description. He testified that Dr. Klein was aware of where he was and that they had an arrangement to acknowledge his time when he travelled. He stated that sometimes, they would call it telework, without having any formal agreement in place. He also testified that he and Dr. Klein would use “duty travel” because the process to apply for conference travel was cumbersome.

[106] Ms. Parker testified that telework required a formal arrangement or agreement with a supervisor. In addition, telework outside North America required approval from the assistant deputy minister. She testified that in 2016, there were heightened concerns about information technology security, and such telework was approved only in exceptional circumstances.

[107] During her investigation, Ms. Toutant learned that the grievor had an informal arrangement with Dr. Klein that gave him time off to conduct clinical work on Wednesday afternoons. Based on a review of his phone records, she discovered that calls had been placed to and from Manotick, Ontario, the golf club’s location, on Wednesday afternoons during the summer months. She also learned from the golf club’s website that he was part of a men’s golf league that played on Wednesday afternoons from 1:00 p.m. to 6:00 p.m. In cross-examination, she agreed that the phone records did not place him at the golf course, only in the Manotick area.

[108] In her investigation interview, Dr. Klein stated that the Wednesday afternoon arrangement was to accommodate the grievor’s “clinic” hours. She said that no leave requests were required for Wednesday afternoons and that he would make up the time. She also said that if he had to be at Health Canada on a Wednesday afternoon, he would find someone to replace him at the Hospital. She was asked if she knew why his phone records showed him regularly in Manotick on Wednesday afternoons; she speculated that he perhaps made visits as a physician there, but she could not confirm it.

[109] The golf club’s website listed the grievor’s golf scores from his participation in the men’s league. He played 9 holes each time. He played 10 rounds in 2015 and 5 in 2016. The website indicated that the men’s league played between 1:00 p.m. and 6:00 p.m. on Wednesdays. Ms. Toutant testified that she did not verify this information with the golf club.

[110] In his written submissions presented at the departmental disciplinary hearing, the grievor agreed that he had an arrangement with Dr. Klein to use Wednesday afternoons for clinical work. He also stated that “on the rare occasion” when he could finish early and “manage the rest of his clinical duties from afar”, he would attend the men’s league. He stated that he was not a regular player and that he played only a “very few times”. When he did play, it was on his own time, he stated.

[111] The grievor testified that he did not have clinical hours at the Hospital on Wednesday afternoons and that in fact, he had no set clinical hours. He testified that he had an understanding with Dr. Klein. He testified that he had the option of making his rounds any day of the week, and because his patients were at a nursing-home level of care, they had minimal needs. He testified that both Dr. Cushman and Dr. Klein were aware of his work at the Hospital but that Ms. Parker and Mr. Sabourin had no understanding of the work he did.

[112] The grievor testified that he was not a regular player at the golf club. He was the “fifth man”, which allowed him the flexibility to play golf when he could and only when his work at Health Canada and the Hospital permitted. He also testified that it was possible to play golf at any time between 1:00 p.m. and 6:00 p.m. and that sometimes, he joined as late as 5:30 p.m.

[113] Dr. Miller was not aware of the grievor’s golfing. However, he testified that it does not matter where a doctor is physically if he or she is available and can get to the Hospital within a reasonable time.

[114] In cross-examination, Ms. Toutant was asked if it was possible that the grievor was in Manotick but not at the golf club. She agreed that it was possible. In his testimony, the grievor did not provide any evidence of where else he might have been while in Manotick.

F. Disciplinary hearing and allegations of a vendetta

[115] On June 1, 2017, the employer invited the grievor to a departmental disciplinary hearing with Mr. Sabourin with respect to the final investigation report; it was eventually scheduled for July 6, 2017. At the departmental disciplinary hearing, the grievor presented a detailed written response to each misconduct allegation.

[116] Mr. Sabourin initially testified that he did not remember receiving any written submissions from the grievor. He then testified that he did not read the grievor’s disciplinary submissions. Instead, he asked a labour relations advisor whether there was “anything new” in the submissions.

[117] At the disciplinary hearing, the grievor suggested to Mr. Sabourin that Ms. Parker had a vendetta against him. Before the Board, he suggested that part of the motivation for the investigation into his conduct was professional jealousy about his role with respect to the Ebola vaccine. He also relied on a statement in an email from Ms. Parker that claimed that his involvement on the Ebola file ended in early August 2014, although he maintained that it had continued after that date.

[118] The grievor reported directly to Dr. Cushman on the Ebola vaccine. Dr. Cushman testified about the grievor’s work on this file and spoke highly of his contribution. Dr. Cushman testified that the grievor’s work on the file resulted in others being unhappy and offended.

[119] Ms. Parker testified that she did not have a personal vendetta against the grievor and that his involvement on the Ebola file was not a factor in her decision to conduct the investigation.

[120] Mr. Sabourin testified that he did not consult Ms. Parker on the viability of a continuing employment relationship. However, Ms. Parker testified that she told Mr. Sabourin that the employment relationship was broken. In cross-examination, Mr. Sabourin conceded that he had discussed the employment relationship with Ms. Parker.

[121] The grievor also alleged that Ms. Parker was engaged in her own conflict of interest because of an inquiry she made about a clinical trial for a cancer treatment on behalf of a friend on September 10, 2015. In her email, she noted that the woman’s doctor wanted to put her on the trial. She told the grievor that she had looked on DocuBridge — Health Canada’s database for tracking clinical trials — but that she had not found any records relating to the trial. The grievor replied that he was sorry to hear that news and that he had not heard anything about the trial.

[122] On November 5, 2015, Ms. Parker forwarded an email she had received from the friend’s doctor about a recent rejection of a request for the authorization to use a drug for experimental treatment. In forwarding the email, Ms. Parker asked if this case had been discussed at a recent Special Access Program meeting. The grievor replied that the doctor could call the Special Access Program and ask what the problem was with the request. He checked with the person responsible, who said that they were open to receiving such a request. Ms. Parker followed up on the doctor’s request and provided an email reply on November 6, 2015.

[123] Ms. Parker admitted in her testimony that the request was made for a former close colleague and friend. She testified that she was looking for an explanation for the denial and that answering questions from patients on a regular basis was a routine part of her work. She also testified that she was looking for information that had been made public and not confidential information. Her role was to find out if requests had been processed properly and if a denial was communicated properly. She would then forward the concern, to have it reviewed. Mr. Sabourin agreed that it was within Ms. Parker’s responsibilities to follow up on such a request.

[124] Dr. Cushman was aware of the Special Access Program. He testified that Ottawa is a small medical community and that he tended to get drawn into such requests because he knew many clinicians. He would become involved on a case-by-case basis. He testified that he did not really want to become involved in such cases and that he would “tread very carefully”. He was asked if he would ever intervene for a friend. He testified that he would “categorically” not, as it would be a conflict of interest. He also testified that he might have someone else intervene in such a case. In cross-examination, he agreed that getting updates for someone was appropriate but that trying to influence the outcome was the problem. In re-direct examination, he stated that he would never have asked the grievor to intervene for a friend and that he would never access the Special Access Program database to assist a friend.

IV. Summary of the submissions

[125] The parties’ final submissions were made in writing. I have condensed and edited those submissions for clarity in this section.

A. Objection to the employer’s rebuttal submissions

[126] The grievor objected to parts of the employer’s rebuttal submission on the basis that the disputed paragraphs were outside the scope of a proper rebuttal and that they constituted “case-splitting”. He asked that five paragraphs of the employer’s rebuttal be struck.

[127] The employer submitted that the paragraphs in question responded to, and clarified, matters raised in the grievor’s reply. It also stated that other disputed paragraphs of its rebuttal directly responded to case law relied upon by the grievor.

[128] I have carefully reviewed the five paragraphs of the rebuttal at issue. In assessing what is a proper rebuttal, the Board must balance the fairness to the parties, the efficiency of the adjudication hearing process, and assistance to the decision-making process provided by the rebuttal. The general principle that applies to rebuttal submissions is that the party presenting them may not add new issues that it was aware of or that it could have reasonably anticipated and addressed in its original submissions. In its rebuttal, a party may respond directly to a new issue raised in the reply submissions and can clarify or amplify its original submission, especially if the reply submissions misconstrue its position or if an issue takes on greater importance.

[129] I find that the paragraphs in question are a proper rebuttal as they respond to the grievor’s reply submissions, and I decline to strike them from the employer’s rebuttal submissions.

B. For the employer

[130] The employer submitted that it had provided convincing and compelling evidence that the grievor repeatedly committed serious misconduct warranting termination of his employment.

[131] The employer submitted that the suspension grievance was moot because the termination of employment was retroactive to the date of suspension. In the alternative, the employer submitted that the Board does not have jurisdiction over the suspension grievance since the suspension was administrative in nature. In the further alternative, the employer submitted that it had reasonable grounds to suspend the grievor because he had committed serious misconduct warranting suspension.

[132] The employer submitted that the Board does not have jurisdiction to consider the grievance alleging procedural defects in the administrative investigation. In the alternative, the investigation was diligently carried out, and any prejudice or unfairness that a procedural defect might have caused have been cured through adjudication of the grievances.

[133] In a termination of employment grievance, the employer must prove the misconduct and also demonstrate that discipline imposed was the appropriate penalty in the circumstances (D’Cunha v. Deputy Head (Correctional Service of Canada), 2019 FPSLREB 78 at para. 139).

[134] The employer is entitled to assess employee conduct by reference to the applicable code of conduct including employer policies (Basra v. Canada (Attorney General), 2010 FCA 24 at paras. 24, 26, and 28, affirming Tobin v. Canada (Attorney General), 2009 FCA 254 at paras. 46 and 47). There is compelling and convincing evidence that the grievor disregarded the following policies: Treasury Board’s Policy on Acceptable Network and Device Use; Health Canada’s Acceptable Use of Electronic Devices and Networks Standard; the Code; and Health Canada Policy on Care and Custody of Information and Networks.

[135] The grievor was required by the terms and conditions of his employment to observe the employment policies in place at the time so that his apparent lack of knowledge did not absolve him of that requirement. Even in the absence of a specific code of conduct there exists a code of common sense that imposes rules of ethics on public service employees (Brazeau v. Deputy Head (Department of Public Works and Government Services, 2008 PSLRB 62, and Stokaluk v. Deputy Head (Canada Border Services Agency), 2015 PSLREB 24 at para. 160).

[136] The grievor had contravened employment policies by:

· transmitting Protected B information to his personal email account;

· using Health Canada resources inappropriately including for secondary employment purposes;

· performing secondary employment during Health Canada working hours;

· failing to follow appropriate leave approval processes;

· failing to fulfil job duties by not responding to a clinical trial application in a timely manner; and,

· playing golf during core Health Canada working hours under a false pretence.

 

[137] The employer’s evidence clearly established that the grievor was dishonest by inaccurately disclosing the scope of his outside employment in his conflict-of-interest declaration and failing to follow the clear restrictions designed to prevent a conflict of interest from arising. The grievor deliberately and repeatedly over an extensive period of time used government resources on government paid time to run his medical practice. There is no doubt that the grievor was unjustly enriched by not having to secure private assets to conduct his medical practice, and at least when on call during Friday afternoons received a paid stipend in addition to his government salary amounting to “double dipping”.

[138] The conflict-of-interest issue related to the grievor’s outside employment on its own warranted termination of employment. Conflict of interest, even apparent conflict, is considered serious misconduct. Disavowing knowledge of the conflict-of-interest obligations does not diminish the grievor’s culpability. The onus of compliance is squarely on the employee (Brazeau and Stokaluk).

[139] The vast scope of the grievor’s misconduct was indicated by the way in which one misconduct would sometimes flow into another. This occurred on April 28, 2016, when the grievor took unapproved leave to travel to a conference occurring the following workday that he did not have approval to attend and resulted in the grievor being unaccounted for and failing to provide a timely response to a clinical trial application contrary to internal policy requiring such a response. The grievor put forward two overarching excuses for his behaviour. First, he claimed that he did not know that his behaviour was outside the norm and was contrary to government policy. Second, that he had a work arrangement permitting his absences from the office. Neither defence absolves him. Common sense should have guided him in knowing that his behaviour was neither reasonable nor acceptable (see Basra at paras. 125, 129, and 131).

[140] Confidence in the public service would be eroded if the grievor’s behaviour was not considered serious enough to warrant termination. Individuals that act in such an entitled and careless manner have no place working for the employer (see D’Cunha at paras. 263 and 277).

[141] In assessing quantum of discipline, the Board should reduce a disciplinary penalty imposed by management only if it is “clearly unreasonable or wrong” see (Legere v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 65 at para. 177).

[142] As for quantum, there are no authorities exactly on point, but the following contain applicable elements within suspension and termination adjudications:

· Apenteng v. Deputy Head (Canada Border Services Agency), 2017 PSLREB 58 (conducting personal business during working hours using employer’s resources);

· Brazeau (conflict of interest due in part to outside business interest);

· D’Cunha (time theft and sending information to personal email);

· Gravelle v. Deputy Head (Department of Justice), 2014 PSLRB 61 (excessive personal use of network, sending information to personal email);

· Iammarrone v. Canada Revenue Agency, 2016 PSLREB 20 (conflict of interest including inappropriate use of employer’s equipment and network);

· Pouliot v. Deputy Head (Canadian Forces Grievances Board), 2014 PSLRB 94 (conflict of interest arising from outside employment and use of network and email for outside business purpose).

 

[143] In this case, the following aggravating factors reinforce that just cause existed for terminating the grievor’s employment:

· The nature and seriousness of the misconduct struck the core of the employment relationship and resulted in significant damage to the integrity of the employer, and public service.

· The deliberate and repetitive nature of the misconduct that took place over years including during the investigation.

· The grievor’s lack of forthrightness and minimization throughout the investigation and adjudication, despite clear and convincing evidence.

· The grievor’s failure, even today, to meaningfully acknowledge his wrongdoing and realize the significance and seriousness of his actions.

· The grievor’s unwarranted aggressive and combative attitude towards management, especially Ms. Parker.

 

[144] Additionally, the high-level leadership position the grievor occupied weighs in favour of finding misconduct and is an aggravating factor. Due to his position the grievor ought to have known his behaviour was inappropriate thereby making his denials unlikely and increasing moral culpability (see Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107 at para. 228).

[145] Although the employer carefully considered mitigating factors, there were none that would justify substituting a lesser penalty in this case.

[146] The grievor had the opportunity and obligation to make a complete and unqualified statement about his misconduct (see Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43 at paras. 90 and 91). He has never done that. He continued to commit misconduct during the investigation, and either explained it away or admitted only what he could not deny based on evidence collected by the employer.

[147] While assessing credibility is not an exact science, the hallmarks of truthfulness were not present in the grievor’s written responses or during his testimony (see Finlay v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 59 at paras. 107 to 109). In cross-examination, the grievor was evasive and combative leading to interventions from the formation of the Board hearing the grievances. Importantly, he claimed to have no knowledge or recollection of many details, which contrasted with his demeanour on direct examination where he was direct, focused and, definitive. He displayed no unease or frustration with the process while in direct examination; nor did he have memory lapses. The inconsistencies in testimony went beyond a problem of memory or inadvertent mistakes. Instead, the grievor made a tactical choice to his admissions, changing them as needed, but always with a mind to minimizing them. The consequence of this approach is a significant weakening of the sincerity of the grievor’s testimony and negatively impacts his trustworthiness.

[148] The grievor concocted new speculative explanations at adjudication resulting in truth being an untenable moving target. His untimely explanations lead to this question: why did he not raise his innocent explanations at the first opportunity and provide any corroborative evidence? The answer is because the grievor’s evidence was designed to help him escape responsibility for his actions. The scenario the grievor presented defies any reasonable explanation of normal human behaviour in the circumstances and simply lacks credibility (see Apenteng at paras. 78 to 84; D’Cunha at para. 226).

[149] The grievor explained away his golfing by speculating that someone at the golf club might have erroneously kept score. He rejected Dr. Fraser’s account of physicians’ daily responsibilities to attend the Hospital for patient care on the belief that Dr. Fraser had a different type of practice despite not putting that belief to Dr. Fraser during cross-examination. The grievor dismissed Ms. Mulder’s evidence about his on-call schedule as unreliable because scheduling was “worked out” by the physicians themselves. The grievor agreed he had a flexible arrangement for Wednesday afternoons, but that it was part of a boundless flexible schedule. One is left to wonder, why a flexible work arrangement was made if the grievor already had sole discretion to determine his own schedule? The reason is because he did not have such unlimited flexibility.

[150] Ms. Mulder and Dr. Fraser were third parties who testified in a straightforward manner and their evidence ought to be accepted. Ms. Mulder’s testimony about the on‑call schedule and Dr. Fraser’s testimony about physician responsibilities indicated that the grievor was misleading about the scope of his outside business activities during core Health Canada working hours. This type of behaviour diminishes the veracity of his evidence.

[151] The grievor’s explanations lacked credibility because it was clearly an attempt to put blame squarely on someone else. The grievor claimed that supervisors Dr. Klein and Dr. Cushman knew about and condoned his activities, including having a deal in place with supervisors for flexible time and leave. No reliable evidence of knowledge and acceptance by senior management has been demonstrated. Dr. Cushman testified that he was not aware of the grievor’s impugned behaviour, did not directly supervise him, was not privy to investigative findings, and his employment with the department ended part way through the investigative period. The contents of Dr. Klein’s investigative interview, and email correspondence reprimanding the grievor for not following leave approval processes directly conflicted with condonation claims.

[152] It is a clear violation of the Brown and Dunn principle for the grievor to argue impeachment of Dr. Klein’s statement without having put the contents to her for explanation. The grievor’s testimony in cross-examination that Dr. Klein falsified her statement out of fear of discipline by Ms. Parker is purely speculative. An adverse inference should be drawn from the failure to call Dr. Klein as a witness to substantiate his condonation claim. See Bahniuk at para. 311 and D’Cunha at para. 150.

[153] The way the grievor characterized management, and particularly Ms. Parker’s character, without clear and convincing evidence was abusive and insubordinate and should thereby reduce his credibility as well as act as an aggravating factor. It was inappropriate for the grievor to have repeatedly referred to the administrative investigation as a “witch hunt”. His written response to the final report is replete with comments indicating his disdain for management and Ms. Parker in particular, despite seeking reinstatement.

[154] The fact the grievor has never accepted responsibility and to this date still does not see anything problematic with his outside activities demonstrates a lack of rehabilitative potential making reinstatement inappropriate. The bond of trust necessary between employer and employee has been irretrievably broken.

[155] Retroactively backdating the termination to the date of suspension makes the suspension grievance moot. The Federal Court of Appeal in Canada (Attorney General) v. Bétournay, 2018 FCA 230 (at paras. 42 and 45) is the leading precedent for the proposition that the employer has the authority to backdate a termination to the date of suspension resulting in creating a single disciplinary measure, thereby making the suspension grievance moot. The decisions to suspend and terminate employment were part of a continuum stemming from the same administrative investigation. It would be unreasonable to consider the grievor’s termination well-founded but finding the suspension unjustified as it was based on the same factual record. See also Basra at paras. 153, 155; Apenteng at para. 99; Brazeau at para. 154; Gravelle at para. 101; Legere at para. 251; Shaver at paras. 80 and 138; Stokaluk at paras. 173 and 174; and Wepruk v. Treasury Board and Deputy Head (Department of Health), 2016 PSLREB 55 at paras. 73 and 76.

[156] Only suspensions that constitute discipline may be referred to adjudication under paragraph 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2). The Board may examine the impact of the suspension on the grievor and the employer’s actual intention when determining if the suspension was administrative or disciplinary. If the suspension is determined disciplinary then it is necessary for the Board to decide whether, under subsection 12(3) of the Financial Administration Act (R.S.C., 1985, c. F-11, “FAA”), the suspension was imposed for just cause. To satisfy this standard the Board must consider whether the grievor’s misconduct was sufficiently serious to justify suspension as discipline. For a disciplinary suspension, the Board must be satisfied that misconduct occurred and that the suspension was proportional (see Bétournay at paras. 34, 36, 39, and 41).

[157] The suspension was clearly administrative in nature because it was imposed pending the conclusion of the administrative investigation. For it to have been disciplinary it would have had to constitute the employer’s final response to the grievor’s wrongdoing. The administrative suspension letter was explained by Ms. Parker who coherently articulated her concerns and testified that no final decision had been made at that point. As Ms. Parker explained, it was an administrative measure aimed at removing the grievor from the workplace to investigate serious allegations and safeguard the legitimate interests of the department against risks that could not be sufficiently mitigated if the grievor remained in the workplace.

[158] Although the suspension without pay could have a prejudicial effect on the grievor, it was not aimed at correcting misconduct by punishing him in some way and therefore cannot be considered disciplinary. It is generally accepted that a suspension without pay pending an investigation is not by itself a disciplinary action. Likewise, an employee’s feelings about being treated unfairly do not change the nature of suspension from administrative to disciplinary (see Legere at para. 168).

[159] There was no undue delay in the length of the suspension given the scope and complexity of the investigation. The investigator diligently obtained, reviewed and considered voluminous documentation, conducted numerous interviews, and duly considered the grievor’s responses. Some delay was attributable to the grievor’s lack of forthrightness, changes in representation, and periodic grievor unavailability. The grievor did not provide any evidence, or even testify about this grievance in order to demonstrate that Ms. Parker’s decision to suspend him constituted a disguised disciplinary measure meant to punish misconduct.

[160] Even if the Board is not satisfied that the suspension was administrative, the respondent’s concerns were proven through the administrative investigation to be serious misconduct that warranted the disciplinary suspension.

[161] Issues related to procedural defects cannot be adjudicated. The proper process for challenging the investigation is an application for judicial review before the federal court (see Assh v. Canada (Treasury Board - Veterans Affairs), 2005 FC 734 at para. 12).

[162] Any potential residual procedural defects were cured by an adjudication. By virtue of the adjudications being de novo or fresh hearings, any prejudice or unfairness that a procedural defect might have caused are cured (see Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (CA)(QL) “Tipple (1985)”); and Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291 at paras. 37 to 40).

[163] In any event, the grievor did not testify about the investigation grievance, including pointing to any prejudice that he suffered from the length and form of the investigation into his misconduct. There is no evidence of unfairness or breaches of procedural fairness such as the employer deliberately or indifferently prolonged the investigation. Nor is there any evidence that the length and form of the investigation impaired the ability of the grievor to make full answer and defence. There is instead documentary evidence confirmed by the grievor in cross-examination indicating he was fully informed throughout the investigative process and was afforded opportunities to respond during the administrative investigation, which he did.

[164] In conclusion, the employer submitted that all three grievances should be dismissed.

C. Grievor’s reply

[165] The grievor submitted that the grievances should be allowed.

[166] In discipline cases, the employer bears the onus of establishing that the facts and circumstances adduced in evidence to support its decisions, both as to its determination that the grievor’s conduct deserved discipline and as to the penalty selected (see Lortie v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 108 at para 166). It is the grievor’s position that the employer has failed to meet its burden on both points.

[167] The Board should make an adverse inference with respect to Dr. Klein’s absence from these proceedings. None of the employer witnesses who testified worked directly with the grievor on a day-to-day basis. This is important because the employer’s case is solely based on an investigation report that consists of hearsay statements. As a direct supervisor, Dr. Klein would have had relevant and direct knowledge about the grievor’s work at Health Canada and his second employment with the Hospital. This is significant since Dr. Klein’s evidence would have explained whether she was aware of his flexible working arrangement with the Hospital, his working hours, the extent of this arrangement, whether she had concerns with his work and his presence in the workplace as it relates to the suspension without pay. As his direct supervisor, Dr. Klein would have been intimately aware of his work habits, including regularly working after hours. The fact that he was not disciplined until Ms. Parker’s involvement is telling.

[168] Dr. Klein’s evidence also would have supported the grievor’s condonation argument (discussed later). The employer’s failure to call Dr. Klein was never explained throughout these proceedings. As a result, an adverse inference should be drawn. As noted in Lortie, the Board can make an adverse inference as it relates to the proof of critical facts that have not otherwise been established. Also, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[169] As a practising physician, the grievor has a legal duty of care to his patients. This was not disputed during these proceedings. During cross-examination, both Ms. Parker and Mr. Sabourin acknowledged that he had a legal duty of care, as a physician, to his patients. The employer was clearly aware that he was a practising physician and that he was working at the Hospital. However, none of Health Canada’s policies address the conflicts which may arise from a physician working both at Health Canada and at a hospital as a practising physician. Furthermore, the fact that Ms. Parker and Mr. Sabourin are not physicians is important to note since they did not allow for any flexibility when imposing discipline by taking his legal and professional obligations into account.

[170] In the case of termination grievances, the employer needs to demonstrate that there was misconduct and that the discipline imposed was appropriate in the circumstances. The questions to be answered are: Did the grievor’s behaviour justify the employer imposing discipline? If so, was the discipline excessive? And, if not, what alternative just and equitable measure should be substituted? (see Basra at paras. 24 and 25).

[171] With regards to the alleged misconduct, none of the witnesses to the allegations contained in the investigation report testified at these proceedings. As a result, all the evidence contained in the report is hearsay. While the Board can accept hearsay evidence, the Board should disregard the hearsay evidence where it relates to proof of critical facts that are contrary to the grievor’s testimony and have not otherwise been established (see Lortie at paras. 221 to 223).

[172] The grievor did not transmit any protected B information to anyone other than himself. He testified that he forwarded the alleged protected B information to his Gmail account for convenience and also because of technological issues during travelling. He also testified that he never disclosed Protected B information to anyone and was the sole user of his personal electronic inbox. This is clearly not the same thing as transmitting protected B information to a third party outside of the government. The employer adduced no evidence to contradict the grievor’s evidence on this point. Furthermore, there is no evidence that the grievor’s actions resulted in information being disclosed to third parties as a result of this. Moreover, the employer failed to lead any evidence that the security and encryption technology of his Gmail account was less secure than the security and encryption technology of his Health Canada email account. Contrary to the employer’s claim, Dr. Viner did not disclose any information, including Protected B information, to anyone other than himself.

[173] The Oxford Dictionary defines “disclose” as “Make (secret or new information) known”. In this case, Dr. Viner did not make any information known to anyone by sending this information to his own Gmail account. In fact, the employer’s Policy on Acceptable Network and Device Use (“the Network Policy”) implicitly acknowledges the safety and security of Google applications, including Gmail, by explicitly stating in Appendix B: Examples of Acceptable Use as follows:

Collaborate on joint initiatives and projects, via open discussions or closed groups as appropriate, with other departments and levels of government through the use of wikis, professional networking applications, internal tools such as GCDocs or external cloud-based tools such as Google Docs.

 

[174] If the employer has approved the use of Google Docs, then the use of Gmail, which is also a Google application, is similarly acceptable.

[175] As noted in Brown and Beatty, Canadian Labour Arbitration, 5th edition, at paragraph 4:1520, and Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. Ltd. (1965), 16 L.A.C. 73, an employer rule must be consistent with the collective agreement, reasonable, clear and unequivocal, brought to employees' attention and consistently enforced.

[176] In this case, the grievor could not recall receiving training on the Network Policy and the employer failed to adduce any evidence that he received such training and the content of that training with respect to the Network Policy. Furthermore, the employer’s Network Policy is not “clear and unequivocal” since there is no explanation on whether the Network Policy would apply to employees who forward emails to themselves. Lastly, the employer’s application of the Network Policy is unreasonable since it is clear that use of an external cloud application such as Google Docs is considered an “acceptable use”, while the use of Gmail, which is also a Google cloud-based external application is considered unacceptable.

[177] As a result, the grievor’s actions with respect to this allegation do not rise to the level of misconduct.

[178] The grievor testified that both Dr. Klein and Dr. Cushman were aware that he was using his Health Canada email account for personal use, such as coordinating his schedule with the Hospital to make sure that his on‑call hours were not in conflict with his duties at Health Canada. He also testified that he characterizes the frequency of his use of his Health Canada electronic inbox for his alternate employment as quite minimal.

[179] The grievor’s use of his email account falls under the definition of “acceptable use” at Appendix A: Definitions of the Network Policy as “other professional activities” and “limited personal use” as noted in the Network Policy. In fact, Dr. Cushman testified that as Director General, he used his Blackberry “all the time” and that he received emails from external parties to his Health Canada email and that he was not concerned with Dr. Viner’s use of his Health Canada email for his alternate employment. This is consistent with Dr. Cushman’s interview statement in which he stated that he considered this practice “acceptable”.

[180] The grievor also testified that the employer never expressed concern about emails communication with the Hospital prior to the investigation. There is also no evidence that this interfered with his work duties. This is clear evidence of condonation. In Chopra v. Canada (Attorney General), 2014 FC 246, the Federal Court outlined the test of condonation at paragraphs 109 and 110 as follows:

[109] …Briefly stated, the principle of condonation requires an employer to decide whether or not to discipline an employee when it becomes aware of undesirable employee behaviour. The failure of the employer to do so in a timely manner can constitute condonation of the employee misconduct.

[110] That is, a long delay in imposing discipline may entitle an employee to assume that their conduct has been condoned by their employer where no other warning or notice is given. Once behaviour has been condoned, the employer may not then rely on that same conduct to justify discipline. Allowing employees to believe that their behaviour has been tolerated, thereby lulling them into a false sense of security, only to punish them later is unfair to employees….

 

[181] In this case, many of the allegations against the grievor fall into this category, since Dr. Cushman himself admitted to this practice and was aware of the grievor’s use of his Health Canada email for his outside employment. In fact, many of these emails related to scheduling matters so that he could coordinate this work schedule. While his activities fell into the scope of “limited personal use” and “other professional activities” as defined by the Network Policy, in the alternative, the grievor submits that the employer condoned these activities and the grievor was lulled into a false sense of security.

[182] The grievor testified that he occasionally used the Health Canada fax machine before he was told he was not supposed to use it. He further testified that once the pharmacy started sending faxes to the Health Canada fax number, he immediately contacted the pharmacy, asked them to stop sending the faxes, bought himself a fax machine for home and re-directed them to that new fax number. All of these actions were appropriate and diligent. None of this evidence was refuted.

[183] The grievor noted that only four prescriptions addressed to him were found on the Health Canada fax machine. It is important to note that the employer never raised the issue of common fax use before the investigation. That evidence has not been refuted by the employer and the employer did not call any witnesses to support these allegations.

[184] With respect to confidentiality, Dr. Cushman testified that the grievor and his colleagues worked in an environment of high confidentiality due to clinical trials and assumed that any fax would have a cover letter and that individuals would “mind their own business and carry on”. In fact, Dr. Cushman testified in examination in chief that he used the fax machine for personal reasons not related to Health Canada. As noted earlier, this is additional evidence of condonation from the employer.

[185] The employer failed to monitor and audit the grievor’s telephone calls in a timely manner and also the employer’s Policy on Procurement and Usage of Wireless Voice Devices (“Wireless Policy”) fails to define “limited amount”. In the final investigator report the employer acknowledges in part that “…users are conditionally authorized to use cell phones and other wireless voice devices for a limited amount of personal use…” The grievor testified that some of these calls were work-related. He explained that he would use his Health Canada mobile phone to assist his staff, by way of calls and text messages. He also testified that his understanding of the permitted use of his Health Canada mobile phone outside of Health Canada business was that he could use it for work and for personal purposes. He also testified that he subsequently bought a personal phone and stopped using his Health Canada mobile phone for his alternate employment at the Hospital.

[186] Furthermore, he clarified his April 10, 2016, email to Ms. Parker, in which he had suggested that “Unknown Callers” may have been from the Hospital but could not be certain. He testified that the incoming calls listed as ‘’unknown callers’’ could have been from diverse sources, such as Health Canada partners and outreach projects for Health Canada.

[187] In his testimony, the grievor clarified that for efficiency purposes, he would sometimes write emails during meetings, when he felt he was not directly concerned. Those emails could be to members of his staff or he would take one minute writing an email to the Hospital to discharge a patient. He testified that he felt Dr. Klein and Dr. Cushman understood this given they are also physicians. At the time, neither Dr. Klein nor Dr. Cushman raised any issue about this. In fact, Dr. Cushman testified in examination in chief and stated he used his Health Canada Blackberry for a “mixture of purposes” for “business and personal” and that “it’s a gray interface”.

[188] The grievor was never asked by the employer to cease and desist from utilizing his Health Canada mobile for purposes other than those related to his Health Canada employment.

[189] With respect to this allegation, the grievor’s actions do not rise to the level of misconduct since he was in compliance with the employer’s Network Policy and Wireless Policy. In the alternative, if his actions were misconduct, they were trivial breaches and were condoned by the employer.

[190] The grievor’s working hours at Health Canada were flexible as a result of an arrangement he had with Dr. Klein, his immediate supervisor. The employer failed to call Dr. Klein to testify with respect to this issue and the Board should make an adverse inference.

[191] According to his collective agreement, the grievor was required to work a minimum of 37.5 hours per week. However, he testified that he frequently “exceeded those hours”, by working weekends, evenings and travel. Dr. Cushman supported Dr. Viner’s evidence on this point by agreeing that Dr. Viner frequently worked after-hours for Health Canada. The employer called no evidence to refute this. In the final investigation report, Dr. Klein is quoted as recognizing that physicians were expected to make up their time. The employer called no evidence to refute this and did not call Dr. Klein as a witness.

[192] Dr. Viner testified that being ‘’on call’ did not require him to be physically present at the Hospital. He also testified that he did rounds when no other doctor was present which was mostly on Saturday, Sundays and, Holidays, outside of his Health Canada work hours. He also testified that his presence at the Hospital was minimal due to caring for nursing home patients. He testified that he could discharge a patient over the phone and that would not require much time. Ms. Mulder testified that physicians do not need to be physically present at the Hospital if they are “on call” and can manage their practice from “anywhere”. Dr. Miller did not directly supervise the grievor and was not aware of his hours at the Hospital.

[193] The grievor testified that prior to the investigation, he was not informed by the employer that his duties at the Hospital were considered a real, apparent or potential conflict of interest. On the contrary, employment at a hospital was considered an asset by Dr. Klein and Dr. Cushman.

[194] With respect to this allegation, Dr. Viner did not commit any misconduct since his work hours were flexible, he operated with the consent of his direct supervisor, and he regularly worked after hours on his Health Canada duties. His employment at the Hospital was consistent with the terms of his conflict-of-interest letter.

[195] Dr. Viner followed leave approval processes. No employer witnesses testified or had direct knowledge with respect to the facts underlining the allegations that Dr. Viner failed to “submit 28 days of leave to account for absences related to personal reasons”. Again, the employer’s failure to call Dr. Klein as a witness is problematic.

[196] Dr. Viner testified that he submitted a paper copy of the leave for his trip to Poland/Israel since the electronic leave system was not working. He further testified that this paper copy was lost by the employer. That evidence was not contradicted by the employer.

[197] Dr. Viner testified that with respect to his trips to Miami, Florida, he was working on projects for Dr. Klein and the trips to his family were family-related. Specifically, Dr. Viner testified while he was in Florida caring for his ill mother, he was still working remotely. Dr. Viner further testified that he was working on a full clinical review for two drugs.

[198] With respect to the other leaves contained in the 28 days from 2014 to 2016, Dr. Viner testified in cross-examination that PeopleSoft has the ability to outline who approved-amended the leave, and the employer did not identify which leaves were subsequently approved-amended by the employer. Given the fact that many of the allegations related to leave were presented long after the leave was taken, it is the employer’s responsibility to produce accurate records.

[199] As noted by Brown and Beatty (7:2120 — Timeliness), adjudicators will recognize the inherent prejudice by an employer’s delay in exercising its disciplinary powers. The employer condoned Dr. Viner’s practice of leave and it could not discipline him for conduct it sanctioned let alone a failure to advise him of the possibility of discipline. Dr. Viner testified that he had an informal telework agreement with Dr. Klein and that he was working when travelling. He stated that there was a degree of trust between himself and Dr. Klein and she treated him like a professional. The employer provided no evidence to dispute this. As noted above, since the employer had the ability to call Dr. Klein with respect to this evidence, the Board should make an adverse inference against the employer for their failure to call Dr. Klein.

[200] With respect to the alleged defaulted clinical trial on April 28, 2016, Dr. Viner denies that he committed any misconduct. Even if Dr. Viner was slightly late with his approval, there is no dispute that he was not required under the Food and Drug Regulations (C.R.C., c. 870) (“the Regulations”) to send a letter to the manufacturer because there was no objection to the approval of the drug.

[201] The grievor testified that Dr. Klein approved his request for conference leave for this attendance at the Symposium in Paris in 2015 and 2016. Furthermore, travel to international conferences is clearly outlined in his job description. This evidence was not refuted by the employer. The Board should make an adverse inference on the employer’s failure to call Dr. Klein to testify since she would have been aware of the approval and the circumstances of the approval. Dr. Viner testified that Dr. Klein was completely aware of his whereabouts and that they had a special way to acknowledge his time when he was travelling. He explained that they would sometimes qualify it as telework, without having any formal agreement, that he could be working from home, from his car and, also while travelling. The leave was not entered in Peoplesoft, rather Dr. Klein and Dr. Viner would use duty travel because the process for applying for conference travel was cumbersome.

[202] The grievor did not engage in misconduct which would have warranted discipline. In the alternative, the employer condoned Dr. Viner’s conduct.

[203] The employer has alleged that the grievor played golf on Wednesday afternoons when he claimed to be conducting clinical hours at the Hospital. The grievor testified that he did not have clinical hours at the Hospital between 1:00 p.m. and 6:00 p.m. on Wednesdays and that he did not have set clinical hours. Dr. Viner testified that he had an understanding with Dr. Klein. He testified that both Dr. Cushman and Dr. Klein were aware of his work at the Hospital, but that Ms. Parker and Mr. Sabourin had no understanding of his Hospital work. Dr. Viner was not a regular player in the golf league. He explained that it was possible to play golf at the club any time between 1:00 p.m. and 6:00 p.m. and that sometimes he could join as late as 5:50 p.m. He explained that he was the 5th member of his group and that only four people could play at the same time. This flexibility allowed him to play golf only when he could and only when his work at Health Canada and at the Hospital permitted it. The grievor’s testimony is supported by the phone records.

[204] In any case, the grievor had flexible work hours with Health Canada and his duties at the Hospital were minimal and also allowed flexibility and he would make up for his time. Finally, the grievor testified that the employer never raised any concern with him playing golf on some Wednesdays before the investigation.

[205] The evidence presented at adjudication fell considerably short of the evidence required to uphold the suspension without pay.

[206] Contrary to its submissions, the employer could not backdate the termination to the date of the suspension without pay. This is because the vast majority of the facts supporting the termination were not known to the employer at the time of the suspension in August 2016 (see Bétournay at paras. 56 and 57). In this case, many of the allegations involving working hours, golfing and leave approval processes were not reflected in the suspension letter.

[207] The employer did not have grounds to indefinitely suspend the grievor without pay. In Bétournay, at paragraphs 34 to 36, the Court outlined the principles to consider when deciding whether the suspension without pay was justified. As noted by the Board in Girard v. Canada Revenue Agency, 2019 FPSLREB 37 (at para. 85), how the employer chooses to characterize a suspension without pay is not determinative.

[208] In this case, the suspension letter provides the reasons for the suspension during the investigation. Specifically, the letter implies that the grievor’s actions were misconduct when it states that the grievor’s actions “may amount to, among other things, misconduct, breach of the Privacy Act, and/or breach of the Acceptable Use of Electronic Devices and Network Standard”. The suspension letter also further implies that the suspension was disciplinary when it states “...your actions are such as to be potentially harmful or detrimental to Health Canada’s reputation” and “if management determines that disciplinary measures are not warranted, you will be reintegrated into the workplace and you will be compensated accordingly for the period of your suspension”. This letter contains all of the indicia of a disciplinary letter.

[209] The Treasury Board’s Guidelines for Discipline (Appendix B — Indefinite Suspension Principles for Consideration by Delegated Managers) incorporates the criteria from the Board set out in Larson v. Treasury Board (Solicitor General Canada – Correctional Service), 2002 PSSRB 9 in determining whether an indefinite suspension is justified. Specifically, one of the main factors is whether “…the presence of the grievor as an employee of the organization can be considered to present a reasonably serious and immediate risk to the legitimate concerns of the employer”.

[210] The grievor did not pose a “reasonably serious and immediate risk to the legitimate concerns of the employer”. The employer chose to allow him to remain an employee with pay from April 25, 2016, to August 29, 2016, even though the employer was aware of the circumstances of the “defaulted trial” on April 25, 2016. This undermines the employer’s justifications for the suspension without pay. Moreover, the factual basis for concluding that Dr. Viner was a significant risk to the “health and safety of Canadians” was flawed, since Dr. Viner did not violate the Regulations. Many of the allegations against Dr. Viner contained in the suspension letter involved elements of management condonation. The use of his Gmail account was not contrary to the Network Policy. The grievor had advised pharmacies to no longer send faxes to the Health Canada fax machine.

[211] The employer failed to take alternative and more effective measures to address the concerns against the grievor. Ms. Parker could have instituted training for all staff on the conflicts of interest and Health Canada policies, including the Network Policy.

[212] The impact of the suspension without pay on the Grievor was significant since he was without pay for a year, isolated from his colleagues and work while his career prospects at Health Canada were halted. In fact, the Court in Bétournay did not disturb the Board’s finding that a “denial of wages could be indicative of discipline because of its punitive effect” (at para. 34).

[213] The employer’s claim in the suspension letter that the grievor’s actions were “potentially harmful or detrimental to Health Canada’s general reputation” was flawed. There is no evidence that anyone outside of Health Canada was aware of Dr. Viner’s actions at the time he was suspended. The employer failed to adduce any evidence that Dr. Viner’s continued presence in the workplace was a “serious and immediate risk to the legitimate concerns of the Department, including the health and safety of Canadians”. There is also no evidence that the employer examined different possibilities for keeping Dr. Viner in his duties or assigning him other duties during the investigation. Overall, Dr. Viner’s actions were not sufficiently serious to warrant a suspension without pay in accordance with the reasoning in Bétournay.

[214] Moreover, the facts in Bétournay can also be distinguished from the facts in this case. Most notably, the investigative period in Bétournay was approximately three months and involved the same facts as the termination. By contrast, the termination of Dr. Viner was one year after the suspension without pay was issued and involved additional facts which were not within the employer’s knowledge at the time the suspension without pay was issued.

[215] Another factor to consider in this case is Ms. Parker’s own actions when communicating with her friend and her physician which created a real risk of harming Health Canada’s reputation for integrity and contrary to the Code. This evidence was clearly supported by Ms. Parker’s emails and her testimony.

[216] The suspension without pay and termination were excessive in light of the facts established during the Board’s proceedings. The vast majority of the allegations against Dr. Viner contained in the investigation report were not substantiated. The majority of the facts alleged against the grievor were not proven on a balance of probabilities at the adjudication hearing.

[217] There are significant mitigating factors which weigh in favour of the grievor including the following:

· More than 15 years of service and discipline-free record

· The absence of any progressive discipline

· The employer’s condonation of his actions and the delay in instituting discipline

· Ms. Parker’s own misconduct

· Failure of the employer to reconcile his professional obligations, including his legal duty of care with his conflict-of-interest obligations

· The conflict between his conflict-of-interest obligations and the Network Policy

· The significant difference between the facts alleged at Dr. Viner’s termination and the facts proven at the adjudication hearing.

· The employer’s bad faith conduct

· The lack of evidence that the employment relationship was broken

 

[218] In Pelletier v. Canada Revenue Agency, 2019 FPSLREB 117, the Board similarly dealt with a case in which the employer failed to substantiate many of the allegations against Mr. Pelletier at adjudication. As a result, the Board allowed the grievance.

[219] The letter of termination noted a lack of remorse or acknowledgment of the seriousness of the grievor’s actions and considered that to be an aggravating factor. However, many of the allegations were not substantiated. The grievor should not be required to apologize or show remorse for actions which were either unsubstantiated, condoned by management, consistent with employer policies and the collective agreement, as well as being consistent with management’s own actions?

[220] The letter of termination contains incorrect information where it states that Mr. Sabourin “carefully reviewed the administrative investigation report, including the arguments and information you presented….and the written submissions you provided during the disciplinary hearing”. However, Mr. Sabourin admitted that he did not read the grievor’s submissions and merely asked his labour relations advisor whether there was “anything new” in the submissions. As a result, the grievor’s mitigating factors and arguments were not considered by Mr. Sabourin at the time of termination.

[221] This incorrect information adds to Mr. Sabourin’s overall lack of credibility, including lack of reliability. For example, during his testimony, Mr. Sabourin claimed that he did not speak to Ms. Parker about whether the employment relationship had been broken. However, when confronted with Ms. Parker’s testimony that Mr. Sabourin did contact her, he reversed his evidence and stated that he did in fact contact Ms. Parker.

[222] Many of the cases cited by the employer can be easily distinguished on the facts. In Apenteng, Mr. Apenteng was involved in fraudulent activity by creating and using a fraudulent medical certificate to justify absences. The grievor never hid his second employment and was forthright and honest about his second employment and on his own accord, submitted a conflict-of-interest report to the employer.

[223] In Brazeau, Mr. Brazeau was found to have favoured a company with which he had family ties and awarded contracts to companies according to the client's wishes rather than in compliance with objective criteria. In this case, Dr. Viner never abused his position to benefit himself or anyone else, unlike the actions of Ms. Parker in assisting her friend.

[224] In D’Cunha, Mr. D’Cunha and Ms. De Laat were arrested on drug trafficking charges. In this case, there is no evidence that Dr. Viner engaged in any conduct remotely similar. Furthermore, the grievor had flexible hours which were allowed by his supervisor and the evidence confirmed that he regularly worked after hours.

[225] In Gravelle, Mr. Gravelle routinely used the internet for his own personal activities thereby constituting time theft and also accessed sensitive staffing competition information for his own personal gain. In this case, the grievor did not steal any time. His clear and convincing evidence was that he had flexible hours and regularly worked after hours for Health Canada. Furthermore, his emails from the Hospital mainly related to scheduling and there was no evidence that he benefited himself or others by accessing sensitive Health Canada information, as Ms. Parker did. Mr. Gravelle’s supervisor also testified in Gravelle, whereas, Dr. Klein did not testify at the adjudication hearing. Furthermore, Dr. Viner was a physician with additional duty of care obligations which required timely communication with the Hospital, whereas Mr. Gravelle was a human resources assistant without such professional obligations.

[226] The extreme facts in Iammarrone cannot be compared to the facts in this case.

[227] In Pouliot, Ms. Pouliot worked for her reserve unit while on sick leave, which her employer paid for. By contrast, Dr. Viner was never accused of “double dipping” and was honest and candid about his second employment.

[228] The suspension without pay and termination should be rescinded. In the alternative, if some discipline is warranted, then the Board should substitute the termination and suspension without pay for a suspension within the range of 5 to 20 days. This would be a reasonable penalty and appropriate given the facts that have been proven in this case.

[229] The employer engaged in bad faith conduct against Dr. Viner. Specifically, the investigation, the suspension without pay, and termination were motivated by bad faith.

[230] In Yeo v. Deputy Head (Department of Employment and Social Development), 2019 FPSLREB 119, the Board outlined the following factors in establishing a claim of bad faith at paragraphs 126 and 127:

…The onus is on the grievor to show that the employer was motivated by hostility, malice, ill will, or dishonesty or that it had an improper motivation.…

…I must answer the following three questions to determine whether the employer’s actions were in bad faith: Were the standards communicated? … Was training provided?…

 

[231] Similarly, in this case, the following evidence establishes indicators of bad faith on the part of the employer:

· The suspension without pay for a year was based, in part, on a false and legally incorrect allegation that the grievor violated the Food and Drug Regulations and was an “immediate risk” to the “health and safety of Canadians”.

· The employer did not provide the grievor with training or guidance on conflict-of-interest issues as they applied to his second employment as a practicing physician. By their own actions, the employer’s sole objective was to simply find evidence to support the termination of the grievor.

· Mr. Sabourin admitted that he did not review the grievance submissions provided by Dr. Viner during his final level grievance hearing, contrary to the assertion in the letter of termination. This is important since those submissions included evidence of Ms. Parker’s conflict of interest.

· Ms. Parker engaged in a conflict of interest by abusing her position as Director-General to assist her friend and gain a benefit with respect to a cancer drug. She also asked the grievor to divulge confidential information from his meeting. At the same time, Ms. Parker initiated a conflict-of-interest investigation and disciplinary proceedings against the grievor.

· Mr. Sabourin initially claimed that he did not consult with Ms. Parker about the termination. However, when advised of Ms. Parker’s evidence that she had discussed the employment relationship, he admitted that he had consulted her.

· The employer failed to provide training to Dr. Viner on how his duty of care to his patients and professional obligations as a practising physician could be reconciled with his conflict-of-interest obligations.

· Ms. Parker understated the grievor’s contribution to the Ebola file and claimed that it ended early in August 2014. Dr. Cushman confirmed that the grievor’s work on this file continued after August 2014.

 

[232] The grievor is therefore entitled to damages for bad faith termination in accordance with the Federal Court of Appeal’s reasoning in Tipple v. Canada (Attorney General), 2012 FCA 158 at para 15.

[233] The employer caused significant delays throughout this adjudication prior to the COVID-19 pandemic, in particular, by introducing evidence and witnesses at the last minute and making frivolous disclosure requests. This should also be taken into account by the Board.

D. Employer’s reply

[234] The employer submitted that it did not improperly fail to call Dr. Klein as a witness. The employer does not have exclusive access to Dr. Klein nor ought to have called her as a witness for the purpose of facilitating the grievor’s defence of condonation. It is trite law that there is no property in a witness — neither party possesses exclusive control or access over a witness. As a result, either party can communicate with any witness, and seek to call them before the Board to give material evidence. This principle is recognized in paragraph 20(a) of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365), which provides the Board jurisdiction to summons witnesses, enforce their attendance, and compel them to give evidence. The grievor never requested that the Board exercise its statutory power to order Dr. Klein to testify.

[235] An adverse inference against the employer is not appropriate because there is no reason to believe that Dr. Klein’s testimony, if adduced, would have been contrary to the employer’s interest. Dr. Klein made two types of statements. First, she gave a statement as part of the investigation. Second, she made statements through email correspondence. There is nothing suspect about the employer having relied on Dr. Klein’s statements rather than calling her to testify. This is because Dr. Klein’s statements are reliable and consistent with the employer’s position.

[236] Lortie is not persuasive law on admissibility of hearsay evidence. The Federal Court of Appeal in Basra is authoritative for the proposition that hearsay evidence can be accepted to establish any material fact provided it is sufficiently reliable. The Court of Appeal held it is an error in law to reject hearsay evidence, even on a fundamental material fact, simply because it is hearsay. The employer’s hearsay evidence is sufficiently reliable to establish critical facts even if contradicted by the grievor’s testimony. The witness statements from the investigation were reviewed and approved by each witness.

[237] The policies that the grievor violated clearly set out the grievor’s obligations while employed at Health Canada. The conflict-of-interest declaration form that the grievor filled in, without fully disclosing the extent of his outside medical practice, was to ensure balance between Health Canada obligations and other outside activities. The subsequent restrictions were clear and designed to prevent a conflict of interest from arising. The difficulty is not that the employer failed to consider the grievor’s professional obligations but that the grievor repeatedly chose not to follow policies and conflict-of-interest restrictions.

[238] Health Canada’s Care and Custody of Information directive unequivocally states transmitting Protected B information “To/From personal email” is prohibited. The word “personal” is specified as “ex. Yahoo, Hotmail etc.” There is no need to rely on the Oxford dictionary or refer to other policies as interpretative aids because the employer’s policy is clear and applied to the grievor. The grievor, especially given his managerial position, ought to have known his obligations and acted in accordance with them. Sending Protected B information to his personal email was misconduct because such behaviour was clearly prohibited by the employer’s policy.

[239] The grievor’s use of the employer’s email and cellular phone for his outside business activities does not fall within the definition of acceptable use under Treasury Board’s Policy on Acceptable Network and Device Use. Appendix A of the Policy on Acceptable Network and Device Use explicitly restricts limited personal use to activities conducted on personal time, that is not for financial gain, does not incur additional expenses, and does not interfere with the conduct of business. The grievor was not using the employer’s email or cellular phone within the confines of the Policy on Acceptable Network and Device Use because much email and cellular phone use occurred during core business hours and related to the revenue generating business of the grievor’s medical practice.

[240] The grievor’s submissions overlooked critical testimony by Dr. Cushman relevant to the issue of condonation. Dr. Cushman’s testified that he did not directly supervise the grievor, was not aware of the grievor’s email or phone usage, did not deal with the grievor’s leave requests, and he had limited direct interaction with him during his tenure, which ended March 2015. He had no knowledge of the documentation collected during the investigation. Dr. Cushman could not have condoned the grievor’s activities at the time they occurred because he was not aware of them, nor responsible for directly supervising him. There is no evidence that Dr. Cushman directed the grievor’s misbehaviour. As a result, Dr. Cushman’s testimony does not establish condonation.

[241] In any event, it is untrue that Dr. Cushman supported the grievor’s practices. He was not privy to the employer’s investigative findings, and so he lacked the evidentiary foundation about the grievor’s activities to provide a qualified opinion.

[242] The grievor has overlooked extensive supporting business records collected during the investigation, and reliable written witness statements. The collection, synthesis and meaning of supporting documentary evidence was carefully explained by Ms. Toutant who was a credible witness. For example, she introduced the grievor’s leave records contained in the leave tracking application PeopleSoft for the years 2014 to 2016 and explained that the Office of Audit and Evaluation verified her findings on leave dates, roaming charges and loss of salary dollars.

[243] The Federal Court of Appeal’s reference in Bétournay to the McManus v. Treasury Board (Revenue Canada, Customs and Excise), [1980] CPSSRB No. 14 decision does not detract from its holding that the employer has the authority to backdate a termination to the date of suspension resulting in creating a single disciplinary measure and making the suspension grievance moot. The Federal Court of Appeal did not affirm the reasoning in McManus.

[244] The McManus decision is not persuasive. It is distinguishable in fact and issue. As the Court in Bétournay pointed out, McManus was made nearly 40 years ago and in connection to a previous version of the FAA.

[245] The grievor’s allegations of inappropriate conduct by the employer is unfounded. The employer introduced all three versions of the investigative reports and the documentation referred to in the final report. There has been no attempt to mislead or inaccurately disclose records. The suggestion that the employer has failed to produce accurate records is serious and based on unsubstantiated speculation. Despite the grievor’s insistence that a record showing his leave being approved and then amended exists, he never made a production request for it.

[246] The grievor has not demonstrated that Ms. Parker committed misconduct, or that Ms. Parker’s actions were relevant to the misbehaviour he engaged in during the investigative period. His allegations against Ms. Parker represent a “red herring fallacy”. In the email correspondence, Ms. Parker did not ask the grievor to provide her with confidential business information. There is no evidence that Ms. Parker provided her former close colleague and friend or her doctor with such type of information. Ms. Parker’s explanation that she was seeking non-confidential information ought to be believed. The fact that Ms. Parker was seeking information for a former close colleague and friend did not prohibit Ms. Parker from sending her journal articles or publicly available information. Dr. Cushman and Mr. Sabourin both testified consistently that providing non-confidential information or a status update on an application under the special access program is not inappropriate.

[247] The employer stated that it reserved its further submissions on damages to the remedy stage, should the grievances be allowed in whole or in part.

[248] The employer objected to the submissions of the grievor that the employer, and its counsel, had engaged in inappropriate conduct in the course of this hearing. It submitted that there was no evidentiary foundation for the claim. The employer submitted that attacks on the character of opposing counsel did not align with the decorum required in hearings before the Board.

V. Reasons

[249] Before proceeding to addressing the merits of the grievances, I will address some of the parties’ general submissions.

[250] The grievor has made significant allegations against the employer, and in particular employer counsel, relating to the conduct of these proceedings. While the proceedings were not smooth, there is no evidence of bad faith or deliberate delay by the employer or its counsel in these proceedings.

[251] Allegations related to the conduct of each party in relation to the adjudication hearing before the Board, as well as allegations against the professional conduct of a representative, are serious and must be supported by sufficiently clear, convincing and cogent evidence to meet the balance-of-probabilities criterion. In this case, that standard of proof has not been met. Counsel are officers of justice and are bound by demanding ethical standards, enforced by law societies. Likewise, officers of bargaining agents should conduct themselves according to similar ethical standards when they represent employees in quasi-judicial proceedings before the Board. All representatives appearing before the Board, whether they are counsel or not, have a duty to protect the good repute of the administration of justice and that duty includes refraining from disparaging the professional reputation of others in the absence of sufficiently clear, convincing and cogent evidence. Excesses in that regard are detrimental to the good administration of the adjudication process and shall not be condoned.

[252] The grievor recognized that the Board can accept hearsay evidence but argued that I should disregard it if it relates to proof of critical facts that are contrary to his testimony and that have not been contradicted by direct evidence. The hearsay evidence before the Board was mostly the investigator’s summaries of interviews of individuals who did not testify. These individuals reviewed and signed the summaries. The employer submitted that this hearsay evidence was admissible and that it should be considered.

[253] There is no blanket restriction on the admissibility of hearsay evidence before the Board. Although I am not bound to accept it, I cannot reject it out of hand simply because it is hearsay. The issue is whether it is reliable (see Basra). I have considered all the evidence before me and have assessed the reliability and appropriate weight of any hearsay evidence in these reasons.

[254] The grievor also submitted that I should draw an adverse inference from the employer’s failure to call Dr. Klein as a witness. He submitted that Dr. Klein would have had relevant and direct knowledge about his work and outside employment. He also submitted that her evidence would have supported his argument on condonation by the employer. The employer noted that “there is no property in witnesses” and that the grievor had the opportunity to call Dr. Klein as a witness.

[255] I accept that the grievor had an opportunity to call Dr. Klein as a witness. I agree that the employer is not required to call a witness who might assist with the grievor’s defence — in this case, his position that management condoned his behaviour.

[256] In Lortie, the Board noted that it could make an adverse inference as it relates to the proof of critical facts that have not otherwise been established. In this case, the employer bore the burden of proof. If it did not establish critical facts because it did not call Dr. Klein as a witness, it may have an impact on meeting the employer’s burden of proof. I have addressed the treatment of Dr. Klein’s hearsay evidence (her emails and the investigation interview) in my discussion of the alleged misconduct and management’s alleged condonation.

[257] In these reasons, I will first address the termination-of-employment grievance since the termination was backdated to the date of the suspension (which the employer characterized as administrative in nature). I will then address the suspension grievance. I then conclude by addressing the grievance against the investigation and the investigation process.

A. Termination of employment

[258] The framework for analyzing a termination of employment is well established: (1) Was there cause for discipline? (2) If so, was termination an excessive response in all the circumstances? (3) If it was excessive, what alternative disciplinary action should be substituted? See Canadian Food and Allied Workers Union, Local P-162 v. Wm. Scott & Company Ltd. (1976), [1977] 1 Can LRBR 1 (BC LRB) (“Wm. Scott”) and Basra.

[259] The employer bore the burden of proving the misconduct on which it relied in the termination letter. It submitted that it had met this burden. The grievor submitted that the burden had not been met.

[260] I have reproduced the letter of termination in the introduction section of this decision. The alleged misconduct is the following:

· Ignoring the restrictions on his outside employment as set out in the conflict-of-interest letter;

· Using Health Canada resources, such as email, fax machine, and an employer-issued phone for his outside employment;

· Using Health Canada resources for communication related to his outside employment duties during hours that he was being paid by the employer;

· Misuse of leave and travel claims despite being aware of the proper protocols;

· Sending protected business information to his personal email account and to external parties without authorization.

 

[261] The letter of termination also stated that there was evidence to demonstrate the use of Health Canada resources for outside employment prior to receiving his conflict-of-interest letter in 2014 and to not being “forthcoming” with the conflict-of-interest office. However, the employer did not pursue this alleged ground of misconduct at the adjudication hearing, and I have not considered it.

[262] During the proceedings before the Board, the employer raised allegations of “double dipping” or obtaining pay for work at the Hospital while being paid for the same time-period by Health Canada. I ruled that this alleged misconduct was not relied upon by the employer in the letter of termination and was therefore not properly before me.

[263] I heard evidence about the alleged failure of the grievor to complete a clinical trial in a timely manner. Although this alleged misconduct was referred to in the letter of suspension, it was removed from the rationale for the suspension by Ms. Parker and was to be “… addressed through the course of the investigation”. Although there are references to the alleged clinical trial default in the investigation report, there are no findings related to it. In addition, this alleged misconduct was not referred to in the letter of termination. Therefore, I find that the allegation was no longer part of the reasons for suspending the grievor and was not alleged in support of the decision to terminate his employment, and so, I have not considered it as a ground of misconduct.

[264] The employer has also relied on the alleged misconduct of playing golf on Wednesdays when the understanding with Dr Klein was that those hours were for his clinical rounds at the Hospital. Although that allegation was included in the investigation, it is not included as a ground of misconduct in the letter of termination. Accordingly, I have not considered this allegation in determining misconduct.

[265] I now turn to the alleged misconduct contained in the letter of termination.

[266] Some of the allegations relate to the grievor’s outside employment and the restrictions related to that outside employment set out in the letter he received from the conflict-of-interest office on May 22, 2014. I have reproduced earlier in the decision the restrictions set out in the conflict-of-interest letter, but for ease of reference, the restrictions that are relevant to the termination of employment are as follows:

· Not using Health Canada working hours for the performance of outside employment.

· Not using any of Health Canada’s resources (for example: data, information, confidential material, documents/presentations, email account) or equipment (for example: computers, photocopiers, office supplies) for outside employment.

· Not allowing outside employment to impair availability, capacity or efficiency with respect to the performance of Health Canada duties.

 

[267] The grievor did not dispute that the email with the letter from the conflict-of-interest office outlining the restrictions in place for his outside employment was sent to his email address. He had filed a declaration and had answered questions about his outside work. In the email requesting answers to a series of questions about his outside employment, the office representative asked for confirmation of where to send the “final response letter”. Therefore, the grievor was notified that he would receive a final response letter.

[268] Although it is possible that the grievor did not read the letter outlining his restrictions in May 2014, there is no dispute that it was sent and that it was received at his email account. Ignoring a document that he had received, even if it was inadvertent, is not a valid excuse, especially since he was put on notice that he would be receiving a final response letter. The grievor cannot rely on his own negligence to justify not being aware of the content of the conflict-of-interest letter. I therefore conclude that the grievor was aware, or ought to have been aware, of the restrictions related to his outside employment on, or shortly after, May 22, 2014.

[269] The grievor stated that he read the 2015 letter from the conflict-of-interest office (the annual reminder letter) and that after receiving it, he told the pharmacy to stop sending him faxes at work and bought a personal fax machine. That letter was not entered as an exhibit. However, it must have contained his conflict-of-interest restrictions as there was no other reason for him to change his practices related to the use of the fax machine, after receiving it.

[270] I find that the restrictions set out the conflict-of-interest letter of May 22, 2014, are clear and not ambiguous. The letter also stated at the end that if the grievor had “any questions regarding this matter” to contact a named departmental advisor. Therefore, the door was open for him to seek further clarification of the restrictions, to help him understand those restrictions. Once the clear restrictions had been established and communicated to him, the obligation to address any issues with them rested with him.

[271] The grievor has also argued that the Code was never brought to his attention. Ms. Parker stated that it was included in the grievor’s letter of offer and that there were regular reminders of conflict-of-interest obligations. The letter of offer was not entered as an exhibit at the hearing by the employer, nor were the regular reminders. The employer has not established, on a balance of probabilities, that the Code was brought to the grievor’s attention prior to May 22, 2014.

[272] However, if he had not reviewed the Code, the relevant sections of the Code were nonetheless reproduced in the letter from the conflict-of-interest office. I therefore find that at the relevant times related to these grievances (after May 22, 2014), the grievor was aware of both the conflict-of-interest restrictions that applied to him and the Code’s provisions.

[273] I now turn to the grievor’s areas of alleged misconduct. I have separated the misconduct allegations into three areas: use of personal email for government business; use of employer resources for outside employment and conducting outside employment during regular hours of work; and being on leave and on travel status without proper authorization.

1. Using personal email for government business

[274] The grievor is alleged to have sent information classified “Protected B” to his personal email account. The letter of termination also states that the employer had evidence that the grievor sent such protected information to external third parties. There was no evidence presented to support the allegation that the grievor sent emails with protected information to third parties. The only evidence before me is the sending of protected information to the grievor’s personal Gmail account. The employer has not established that emails were sent to external third parties.

[275] The grievor did not dispute that he sent emails from his Health Canada email account to his personal Gmail account. He also did not dispute that some of those emails contained confidential information.

[276] The applicable policies relating to confidential information were available to the grievor, as I accept that they were available on the employer’s intranet. Although Ms. Parker testified that the acceptable-use policy was communicated to employees frequently, there is no evidence, other than her testimony, to support her assertion. However, I find that the grievor knew that the emails he was sending to his personal email account were confidential and needed some security. In submissions he presented at the departmental disciplinary hearing, he admitted to sending work emails to his home account, “thinking that they were secure”. In those submissions he also said that he recognized “in retrospect” that an email relating to the Health Canada database could be perceived as a release of “Protected B” information. He obviously directed his mind to the security aspects of his work. I also find that given his years of experience at Health Canada as well as his position as a manager he ought to have had knowledge about keeping Health Canada information secure.

[277] The grievor has argued that he did not transmit “Protected B” documents to anyone other than himself. He is correct that there is no evidence that he sent such emails to third parties. However, the prohibited use set out in employer policy is the transmission of “Protected B” documents to or from a personal email address — there is no suggestion that this is limited to transmission to third parties. The fact that there is no evidence that the documents that the grievor sent to himself were intercepted by third parties is irrelevant. The policy is designed to protect the legitimate business interest of the employer in protecting the integrity of designated documents. It is not clear to me how anyone could know that the documents had, or had not, been intercepted after they have been sent to the grievor’s personal email account on the Gmail network, which is an external party unsecure network. The definition of “disclose” is also irrelevant to the issue at hand. The prohibition in the employer policy relates to transmitting or sending documents — not to disclosing them. I find that the grievor was aware of the confidential nature of the information he was sending to his personal email. The evidence shows that the sensitive information included the hyperlink to the drug submission tracking system and access information, such as username and password. Further, I find on a balance of probabilities that the grievor knew, or ought to have known, that sending such information to his personal account on the Gmail network was not secure.

[278] The grievor also argued that the employer failed to lead any evidence that the security and encryption technology of his Gmail account was less secure than that of his Health Canada email account. He noted that in the Treasury Board’s “Policy on Acceptable Network and Device Use”, the Treasury Board acknowledged the safety and security of Google applications, including Gmail, by its recognition of Google Docs as an acceptable use.

[279] The employer was not required to defend its security and encryption technology. The grievor alleged that Google Docs uses the same security technology as Gmail, but there is no evidence before me to support his allegation. In any event, the acceptable use of Google Docs is related to collaboration with other departments and levels of government, which is distinct from the use of the Gmail network at issue in these grievances.

[280] I find that the employer has established that the grievor sent “Protected B” information to his personal Gmail account and the grievor knew, or ought to have known, that this was contrary to employer policy or, at the very least, that it was putting the security of the employer’s sensitive information at risk. Accordingly, this allegation of misconduct is founded.

2. Outside employment: outside work performed during regular work hours, and the use of employer resources

[281] These two allegations relate to the grievor using his work cellphone and Health Canada fax machine for his work at the Hospital, incurring roaming charges while on personal trips and performing Hospital duties during his working hours for Health Canada.

[282] The applicable collective agreement sets out the normal hours of work and allows for hours of work to be arranged to suit an employee’s duties, with the approval of the employer. It is accepted by the employer that there was an informal arrangement with Dr. Klein that allowed the grievor to be away from the Health Canada workplace on Wednesday afternoons. Ms. Parker testified that she was not aware of any other flexible work arrangement for the grievor. The grievor stated that he had a flexible schedule that Dr. Klein was aware of. In her investigation interview, Dr. Klein stated that the Wednesday afternoon arrangement for clinical hours was the only arrangement she had with the grievor about his hours of work.

[283] The grievor testified that he exceeded his normal hours of work by working evenings and on weekends. Dr. Cushman confirmed that the grievor frequently did Health Canada work in the evenings. However, this does not mean that the grievor has established that he had a flexible schedule approved by the employer (other than Wednesday afternoons). In his interview with the investigator, Dr. Cushman stated that he would not be concerned if the grievor was away from Health Canada “on the rare occasion”. I agree that a rare occasion of being absent from work due to the grievor’s Hospital duties might have been acceptable. However, the evidence shows that it was not a rare occasion. His on-call schedule also shows that he made himself available on a regular basis and not on a rare basis to attend to duties at the Hospital.

[284] The grievor submitted that the employer’s failure to call Dr. Klein as a witness to address flexible work hours was significant. I disagree. Other than Wednesday afternoons there was no documented arrangement of flexible hours. The statement of Dr. Klein in her investigation interview does not support the grievor’s allegation that there was an arrangement for further flexible hours. Although Dr. Klein’s investigation statement is hearsay evidence, it is supported by both the evidence of Ms. Parker and the statement of Dr. Cushman about the expected “rare occasions” of absence from Health Canada to perform Hospital duties. The grievor could have called Dr. Klein as a witness to challenge her investigation statement; however, he did not.

[285] I agree that the grievor, like many professionals in the public service, was expected to work beyond his regular hours on occasion. However, this is not the same as allowing an employee to carry out outside employment duties during regular work hours and to make up those hours in the evening or on weekends. No formal flexible work arrangement was in place, other than the grievor’s understanding with Dr. Klein about Wednesday afternoons.

[286] The grievor initially admitted to doing Hospital duties while at work, over the phone. In his meeting with Ms. Parker on March 30, 2016, he told her that he took phone calls from the Hospital about patients, sometimes to give discharge orders and sometimes to review test results. Ms. Parker summarized his statement in an email to the grievor on April 1, 2016, and he agreed on April 4, 2016, that it was an accurate summary of their meeting. He also admitted in that response that most of the “unknown” callers in the phone records were likely from the Hospital.

[287] I find these admissions to be reliable, as they were made prior to the investigation. The grievor provided no explanation for his change of view on these admissions.

[288] The grievor was “on call” on Friday afternoons. Although I accept that being “on call” does not require a physical presence at the Hospital, it may require answering phone calls. The grievor argues that being “on call” was simply a courtesy. Dr. Miller testified that it was not a courtesy and that a stipend was received for this activity. He also testified that it was possible not to be contacted when on call, but that it was very rare and he could not recall such an occasion.

[289] I accept Dr. Miller’s testimony that a doctor on call could be contacted and that it is unlikely that over the number of Friday afternoons that the grievor was on call that he never received a call from the Hospital. Dr. Miller had no interest in the outcome of these grievances and testified in a straightforward manner.

[290] The grievor also attended the Hospital during Health Canada work hours on a few occasions. Some of the scheduled meetings were over the lunch period and I accept that most of the time at these meetings were on his lunch break period, and therefore not during Health Canada working hours. Dr. Miller testified that the family conference meetings were usually about half an hour in length and that there might be paperwork to do afterwards. However, some meetings were scheduled during his Health Canada working hours. From a review of the emails, there were approximately five such meetings. The grievor maintains that these meetings never took place. I do not find this testimony to be reliable. The emails show that he was scheduled for these meetings and he was sent reminders of those meetings. There are no email responses from him either cancelling or rescheduling those meetings. I find that the grievor has not proven, on a balance of probabilities, that the meetings did not take place.

[291] I find that the employer has proven the allegation that the grievor was doing his Hospital duties during his Health Canada working hours.

[292] I now turn to the allegation relating to the grievor using employer resources for his outside work as a practising physician. In this case, the resources were his cellphone (used for phone calls and emails) and the Health Canada fax machine.

[293] The conflict-of-interest restrictions set out in the 2014 letter included not using Health Canada’s resources or equipment for his outside employment. The grievor has argued that his use of his Health Canada cellphone was an acceptable use under applicable policies.

[294] The Treasury Board’s “Policy on Acceptable Network and Device Use” provides the following definition of “acceptable use”:

…

· To perform activities as a part of their official duties;

· For career development and other professional activities; and

· For limited personal use that is conducted on personal time; that is not for financial gain; that does not incur any additional costs for the department; and that does not interfere with the conduct of business.

…

 

[295] Health Canada’s “Use of Electronic Networks” policy provides the following example of electronic network use that involves a conflict of interest: “using the department’s electronic networks for private business, personal gain or profit …”.

[296] It is not disputed that the grievor advised the Hospital that it should communicate with him through his Health Canada email address. He communicated this to the Hospital after he received the conflict-of-interest letter. It is also not disputed that numerous emails were received from the Hospital and sent to the Hospital by the grievor from his Health Canada email address. Although Dr. Cushman was not aware that the grievor had provided his Health Canada email address to the Hospital, he was not surprised. However, Dr. Cushman observed that although there could be a “spillover”, as a general rule he tried to keep his work and personal emails distinct. The volume of emails to and from the Hospital were nevertheless not “minimal” as the grievor testified. He was consistently using his Health Canada email address for his work at the Hospital.

[297] The grievor also argued that his use of email would fall under the definition of “acceptable use” in the Network Policy. The conflict-of-interest letter was clear that the grievor was not permitted to use his work cellphone for his outside employment. However, the employer also relied on its Network Policy in the termination letter and at the Board hearing. The Network Policy defines “acceptable use” as including “career development and other professional activities”. It also allows for limited “personal use” on personal time that is “not for financial gain; that does not incur any additional costs for the department; and that does not interfere with the conduct of business”.

[298] The reference in the Network Policy to “other professional activities” immediately follows a reference to “career development”. Consequently, I understand that, when read in context, the “activities” being referred to are limited to those related to the grievor’s career at Health Canada, as opposed to any professional activities that would include outside work for financial gain. This is reinforced by the non-exhaustive listing of “work-related and professional development activities” in Appendix B of the policy. All the activities listed relate to the employee’s government employment, not outside work.

[299] The “personal use” exception is for use on personal time and not for financial gain. In this case, the grievor received and sent emails during his Health Canada hours of work. More importantly, the emails related to his outside employment — which was for financial gain, so they were not for the “personal use” contemplated in the Network Policy.

[300] The grievor also submitted that there was no evidence that using his work email for his outside employment interfered with his Health Canada duties. However, the conflict-of-interest letter clearly directed him not to use Health Canada resources for his outside employment. The use of his work email was more than an oversight — he asked the Hospital on December 2, 2015, and January 11, 2016, to contact him for work-related matters on his Health Canada email account.

[301] A review of the faxes entered as exhibits before the Board showed that one was sent on June 6, 2014. The others entered as exhibits all predate the initial conflict-of-interest letter of May 22, 2014. Ms. Parker’s testimony that employees had told her that faxes had been received after May 22, 2014, is hearsay. Without copies of the faxes that these employees referred to, or those employees testifying before the Board, I find that this evidence is not reliable.

[302] The one fax in evidence that was received after the conflict-of-interest letter of May 22, 2014, was received within two weeks of that letter being issued. The employer has therefore established that the grievor received one fax after being instructed not to use a Health Canada fax machine for his Hospital duties.

[303] The evidence is uncontradicted that the grievor used his Health Canada cellphone for his outside employment at the Hospital and the nursing home. At his initial meeting with Ms. Parker on March 30, 2016, he admitted that he used his Health Canada cellphone to conduct duties related to his Hospital work, including giving discharge orders and reviewing test results.

[304] There were also a lot of unidentified incoming calls. Although initially the grievor told the employer that many calls from the Hospital would be marked as “unidentified” he later testified that many of these calls were related to his Health Canada work. The employer has not provided evidence as to the identity of these callers. Accordingly, I am not able to conclude what proportion of the unidentified calls were related to the grievor’s outside employment. However, the number of identified calls from the Hospital and the nursing home, as well as the grievor’s admission to Ms. Parker that he used the Health Canada phone for Hospital work, are sufficient to conclude that the grievor did use his Health Canada phone for his outside employment, which was contrary to his conflict-of-interest restrictions.

[305] The employer also relied on the testimony of Ms. Parker that the grievor took a call in her presence from a former patient. I find that the call from a former patient is not related to the allegation of using Health Canada resources for his outside employment. This call was not from a patient under the grievor’s care at that time.

[306] I find that the grievor did use his Health Canada cellphone for phone calls and emails related to his outside employment, contrary to the conflict-of-interest restrictions and the Network Policy. The use of his cellphone was not “personal use” under the Network Policy but was related to financial gain from his outside employment.

[307] The employer tendered evidence of the incurring of long-distance charges. At the Board hearing, it also relied on this activity as a ground of misconduct. The letter of termination does not explicitly refer to the long-distance charges as a ground of misconduct. The fact that the grievor used his Health Canada cellphone while out of the country is relevant only to the allegation that he used the cellphone for Hospital duties (which I have already addressed) and as evidence related to his unauthorized leave and travel (which I address in the next section).

3. Unauthorized leave and lack of travel authorization

[308] The final investigation report contained the finding that the grievor had failed to submit 28 days of leave to account for absences related to personal reasons. The grievor did not dispute that the leave approval software did not record his absences from work. He did dispute that the time away was unauthorized.

[309] The grievor submitted that he followed the appropriate leave approval processes. He also submitted that his travel was work related or sanctioned by the employer. He noted that no employer witnesses testified or had direct knowledge of the facts relating to the allegation. He further noted that Dr. Klein did not have direct knowledge of those facts either.

[310] The absence of a record of leave requests in the leave database is, on its face, proof that the grievor did not follow the formal leave request process. For some trips, there was an approved day of leave, followed by days that were not approved. He provided no explanation for this oversight. The employer has shown that there were periods in which he was out of the country with no corresponding approved leave.

[311] The grievor has suggested that he had an informal arrangement with Dr. Klein for unapproved leave. Dr. Klein did not testify before the Board, and the investigation notes do not mention her having stated that she had such an arrangement. In fact, she told the investigators that all of the trips were personal, except for one that she was uncertain of. As the grievor alleges that there was an informal understanding with Dr. Klein about being out of the country while not on authorized leave, the onus was on him to prove that agreement on a balance of probabilities. In the absence of evidence from Dr. Klein to support such an arrangement, which evidence the grievor could have obtained and produced before the Board, I find that the grievor has not established that there was such an informal arrangement.

[312] I do not understand the grievor’s submissions that the employer should have called witnesses with direct knowledge of the facts relating to these allegations. It provided business records of phone charges and leave authorization, which is presumptively reliable. Records made in the usual and ordinary course of business are admissible evidence; however, the accuracy of their content and the probative value of their content may be challenged (see s. 30 of the Canada Evidence Act, R.S.C., 1985, c. C-5). The grievor has produced no sufficiently clear, convincing and cogent independent evidence to contradict the accuracy of the employer’s leave approval program evidence (see F.H. v. McDougall, 2008 SCC 53 at para. 46). I find that there is no determinative evidence that the records produced by the employer were inaccurate. The best witnesses to contradict this reliable evidence were the grievor and Dr. Klein, and he could have called Dr. Klein to testify before the Board.

[313] For his trip to Poland and Israel, it is likely that the grievor was only able to submit a paper request for leave. He alleges that he did so and that the employer lost the paperwork. Dr. Klein did not refer to approving a leave request for this trip in her interview. The grievor could have called Dr. Klein as a witness to establish that a request was made. In any event, the responsibility for obtaining authorization for leave rests with the employee.

[314] Related to his trips to Florida, the grievor stated that he was working remotely during these trips. There is no evidence of a formal approval of a telework arrangement for the grievor’s trips to Florida. There is also no evidence of an informal arrangement with Dr. Klein. If he had an informal arrangement with Dr. Klein, he could have called her to testify about it.

[315] The grievor also argued that other days included in the allegations were “approved-amended” — in other words, approved by Dr. Klein after the fact. He alleged that the leave approval program is able to identify who “approved-amended” the leave application and that it was the employer’s responsibility to produce accurate records. As I have already noted, records made in the usual and ordinary course of business are admissible evidence. The grievor has produced no sufficiently clear, convincing and cogent independent evidence to contradict the accuracy of the employer’s leave approval program evidence. I find that there is no determinative evidence that the records produced by the employer were inaccurate.

[316] The grievor also stated that he was on “duty travel” for some of the trips and that he had an arrangement with Dr. Klein to use “duty travel” because the process for applying for conference travel was cumbersome. I accept the testimony of Ms. Parker that travel to conferences was not considered to be duty travel. In addition to there being no documentary evidence to support the claim of duty travel, the grievor did not call Dr. Klein who could have testified about any understanding related to his travel. I also note that in September 2014, Dr. Klein clearly warned him of the need to obtain travel authorization for any work-related trips.

[317] The grievor submitted that his testimony about the arrangement with Dr. Klein was not refuted and that therefore, an adverse inference should be drawn. He has admitted that he did not seek formal authorization for conference travel. The evidence is clear that the appropriate formal authorization was not obtained. If he had Dr. Klein’s informal authorization for this travel, he could have called her as a witness to corroborate his testimony. There is nothing in writing from Dr. Klein in evidence that supports his claim of an understanding with her. Her interview statement for the investigation does not reference any informal understanding on travel or leave authorization. She had also warned him about the importance of obtaining proper travel authorization, which is contrary to a suggestion of an informal understanding.

[318] To counter this evidence that there was no informal arrangement, the grievor has submitted that Dr. Klein was afraid for her job and was not forthcoming with the investigators as a result. Other than his opinion, the grievor has provided no evidence to support his allegation. I find that the employer’s evidence that the grievor did not obtain proper authorization for leave and for travel to be reliable. I should add that I am concerned by the attempt to tarnish the reputation of a person that was not present at the hearing to protect her interest and I do not think that the Board should condone such behaviour by any party that appears before it.

[319] The grievor submitted that there was a delay in the discipline for unauthorized leave, which was prejudicial to him. He did not demonstrate any prejudice that might arise from a delay, such as an inability to remember the details of his trips. The grievor was able to recall the trips and their purposes. However, part of his argument relates to condonation, which I have addressed later in this decision.

[320] I find that the employer has established that he grievor failed to obtain leave approval. The evidence was conflicting as to the number of days of unauthorized leave (ranging from 24 to 28). I do not need to determine the exact number of days for the purposes of the termination grievance. The number of days of unauthorized leave are excessive, whether it is 24 or 28 days. I accept that there may be occasions when a supervisor accommodates an employee by allowing the employee to work from home; in other words, an informal telework arrangement. However, in this case, the grievor did not produce any evidence to support his allegation of such an agreement by Dr. Klein.

4. Conclusion on the misconduct allegations

[321] The employer has proven, on a balance of probabilities, the following acts of misconduct:

1. Using his personal email account for confidential information, contrary to employer policy.

2. Using employer resources for outside employment during hours of work.

3. Working at his outside employment during his Health Canada work hours.

4. Abusing leave and travel provisions.

 

[322] Accordingly, I have determined that the employer had cause for imposing disciplinary action.

5. The motivation for the investigation

[323] The grievor has alleged that the investigation was a form of “witch-hunt” and that this motivation taints the investigation results and, by extension, the employer’s findings of misconduct. This is a slightly different allegation than his overall allegations about the conduct of the investigation, which I address later in this decision.

[324] As I understand the grievor’s position, it is that the employer would never have found out about his misconduct if it had not been somehow motivated to investigate him. He also alleges that Ms. Parker, who he believes was biased against him, was consulted on the discipline to be imposed. In the context of the grievance against the termination of employment, it is well settled that a hearing before the Board is a fresh hearing of the evidence (see Tipple (1985)). Therefore, the motivation for an investigation is not relevant to determining cause for discipline in this fresh hearing of the allegations of misconduct against the grievor. In addition, the alleged bias of someone minimally involved in the discipline process is not relevant to determining cause for discipline when there is a fresh hearing of the evidence of misconduct. Any issue relating to a claim of damages for bad faith termination would be relevant to the identification of an appropriate remedy and, as previously mentioned, the parties agreed that the crafting of an appropriate remedy would be addressed, if need be, after the issuance of this decision.

B. Was the termination of employment excessive?

[325] The employer submitted that the termination of employment was the only appropriate disciplinary action in this case. In his alternative submission, the grievor submitted that the termination should be substituted with a suspension in the 5- to 20-day range.

[326] The employer submitted that in assessing the amount of discipline, the Board should reduce a disciplinary penalty imposed by management only if it is “clearly unreasonable or wrong” (see Legere at para. 177). I note that the quote is from the employer’s submissions in that decision, not from the adjudicator’s reasons. The statement that decision-makers in the federal public sector should interfere only if the penalty was “clearly unreasonable or wrong” is from an earlier decision; see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119.

[327] Cooper involved a financial penalty, not a termination of employment. In my view, the “clearly unreasonable or wrong” approach is not appropriate for disciplinary actions. An early use of this phrase is in a decision of the Public Service Staff Relations Board in Hogarth v. Treasury Board (Supply and Services), PSSRB File No. 166-02-15583 (19870331), in which an adjudicator said that an adjudicator should not intervene just because he or she feels that a slightly less-severe penalty might have been sufficient, adding “… the determination of an appropriate disciplinary measure is an art, not a science.” The cases that have used this approach have all involved suspensions. In a case of a termination of employment, a “slightly less severe” penalty would necessarily involve reinstatement, including a possibility of a suspension or demotion. This is not a case involving a difference of 5 or 10 days of suspension. Accordingly, the “clearly unreasonable or wrong” approach is not appropriate for termination grievances.

[328] As mentioned earlier, the Board’s role in deciding a disciplinary-action grievance is to determine whether the deputy head has shown cause for imposing a disciplinary action and then to determine if the disciplinary action imposed was excessive, having regard to the seriousness of the conduct and to mitigating and aggravating factors (see Wm. Scott and Basra).

[329] I first must address the seriousness of the misconduct. I find that, with one exception, all the findings of misconduct are serious.

[330] The grievor sent confidential information to his personal email account that could have resulted in bringing Health Canada into disrepute.

[331] The grievor had received clear instructions on his restrictions related to his outside employment and he ignored those restrictions. Conflict-of-interest obligations are important in the federal public service and blatantly disobeying those restrictions is serious misconduct that could bring the federal public service into disrepute.

[332] The misconduct related to the extensive use of his Health Canada email address and cellphone for his outside employment is serious misconduct. I have determined that the employer only established the inappropriate use of the Health Canada fax machine on one occasion and that was shortly after the restrictions were communicated to the grievor. I find that this act of misconduct was not serious.

[333] Being on unauthorized leave for over 20 days in total is also serious misconduct. Both the amount of unauthorized leave and the period of time that the misconduct occurred elevates this misconduct to a serious level. In addition, I find that the abuse of travel authorizations is also serious misconduct, especially since this was repeated behaviour and he had received a warning about obtaining proper travel authorization.

[334] Overall, I have concluded that the misconduct of the grievor was serious.

1. Mitigating factors

[335] The employer submitted that it had considered the mitigating factors of years of service, the lack of prior discipline, good job performance and good relationships with those the grievor supervised. The employer submitted that these mitigating factors did not justify a lesser disciplinary penalty than termination. The grievor submitted that the employer had not appropriately considered all of the mitigating factors.

[336] The grievor submitted that the failure of Mr. Sabourin to review the grievor’s written submissions presented at the departmental disciplinary hearing revealed that the employer did not consider the mitigating factors that were put forward in those submissions.

[337] I would first note that Mr. Sabourin did direct his mind to the written submissions when he asked the labour relations advisor to review them and advise him if there was anything new in those submissions.

[338] This is a fresh hearing of the evidence and the grievor has the opportunity before the Board to present the mitigating factors that the Board should consider in making its own determination whether the termination of employment was excessive in the circumstances. That fresh opportunity remedies, in fact, any deficiency that Mr. Sabourin’s decision-making process may have shown (see Tipple (1985), and Patanguli).

a. Condonation

[339] The grievor submitted that Dr. Klein and Dr. Cushman condoned his use of his work email for Hospital work and his flexible hours of work. The employer submitted that there was no reliable evidence of senior management’s knowledge and acceptance of the grievor’s behaviour.

[340] The principle of condonation is based on an employer’s decision not to discipline an employee when it becomes aware of reprehensible behaviour. The failure of an employer to do so in a timely manner can be deemed to be acceptance of the employee’s behaviour; see Chopra at para. 194 and 195. The Federal Court stated that allowing employees to “… believe that their behaviour has been tolerated, thereby lulling them into a false sense of security, only to punish them later is unfair to employees …”.

[341] Dr. Cushman’s testimony does not support condonation of the use of the grievor’s Health Canada emails or of his performance of Hospital work during Health Canada working hours. Dr. Cushman was not the grievor’s direct supervisor and testified that he was not aware of the grievor’s day-to-day activities. He may have expected some use of Health Canada resources for hospital work, but he was clearly not aware of the extent of their use by the grievor.

[342] Dr. Klein provided a detailed statement to the investigator. The grievor has alleged that Dr. Klein made an inaccurate interview statement because she was afraid of discipline from Ms. Parker. That is a very serious allegation that attacks the trustworthiness of a person who had no opportunity to protect her reputation by giving testimony before the Board. The grievor could have called Dr. Klein as a witness but elected not to. He has presented no sufficiently clear, convincing and cogent independent evidence to question the truth of Dr. Klein’s statements in the investigation interview. His bald assertions that Dr. Klein lied to protect her job are certainly not evidence that provides a sufficient foundation to question the veracity of her statements. Accordingly, the grievor has not established that Dr. Klein’s interview statement was a false statement.

[343] Although Dr. Klein’s interview statement is hearsay, I am prepared to give some weight to it. Some of statements in her interview are supported by emails she sent to the grievor. In addition, she signed the statement and initialed each page.

[344] The grievor had the burden of proving his allegation that the employer condoned his behaviour. He suggested that I could draw an adverse inference from the employer’s failure to call Dr. Klein as a witness. I have addressed the general issue of adverse inferences earlier in this decision. In this case, he alleged that Dr. Klein condoned his behaviour, and as it was his burden to demonstrate that condonation, it was also his obligation to present sufficiently clear, convincing and cogent evidence, to support his assertion; nothing prevented him from calling Dr. Klein to testify before the Board.

[345] I therefore find that, on a balance of probabilities, the grievor has not established condonation.

b. Job performance and years of service

[346] The grievor was employed with Health Canada for approximately 20 years. The employer did not dispute that he had received good performance evaluations. Apart from the allegations related to his suspension and the eventual termination of employment, it raised no concerns about his job performance. Dr. Cushman spoke highly of the grievor’s work and productivity.

[347] The grievor received awards for his work at Health Canada, and clearly, when he was doing his Health Canada work, his performance was exemplary. The employer agreed that it was generally an asset to have a practising physician as a Health Canada employee.

[348] I agree that both his years of service and his overall job performance are mitigating factors that should be weighed in assessing whether the termination of the grievor’s employment was excessive.

c. No previous discipline

[349] The employer stated in the letter of termination that it had considered the grievor’s discipline-free record. Although the grievor had no formal discipline on his record, he did receive a warning from Dr. Klein about his failure to obtain travel authorization for himself and subordinates in 2014. I have addressed both the lack of formal discipline and Dr. Klein’s warning later in the decision where the bond of trust and rehabilitative potential is discussed.

d. Ms. Parker’s conduct

[350] The grievor also submitted that Ms. Parker’s conduct involving her request to him for information about a clinical trial on behalf of a friend was a factor to be considered in his discipline. It was the grievor’s position that Ms. Parker’s actions were contrary to the Code’s restriction against preferential treatment.

[351] I do not have to determine whether Ms. Parker breached the Code and I make no determination in that regard; it is not my role in deciding the grievances before me, as my task at this stage is to determine whether, the employer having proven cause to take disciplinary action against the grievor, the termination of the grievor’s employment was excessive. In any event, I would not have sufficient evidence to pronounce on Ms. Parker’s conduct. I note that the grievor did not produce evidence before the Board that he had raised any concerns about her queries or her access to DocuBridge at the time of her requests. Mr. Sabourin testified that it was appropriate to raise concerns that came to one’s attention, as Ms. Parker had done. In addition, the grievor checked with someone who mentioned being open to being directly contacted by the doctor who was concerned about the status of the request.

[352] The grievor seems to be under the mistaken belief that pointing out others’ potential flaws in some way mitigates his own misconduct. This is sometimes effective, if others’ potential misconduct is the same as or similar to the one assessed at adjudication and the employer has dealt differently with each employee. However, in this case, the employer did not terminate the grievor’s employment because of the preferential treatment of others. I find Ms. Parker’s conduct not relevant as a mitigating factor in this case.

e. Delay in imposing discipline

[353] The grievor also submitted that a mitigating factor was the delay in imposing discipline.

[354] In Stokaluk, a decision related to a delay in investigating suspected misconduct while a criminal investigation was underway, the adjudicator stated the following at paragraphs 167 and 168:

167 Delay in the imposition of discipline can in some circumstances affect the employer's right to impose the discipline. In British Columbia v. British Columbia Government and Service Employees' Union (Lawrie Grievance) (1995), 47 L.A.C. (4th) 238, the grievor was discharged more than a year after the alleged incident. … The decision to terminate the grievor's employment was made about four months after the employer began its own investigation. The grievor argued that the termination of employment should be set aside because of the unreasonable delay.

168 The arbitrator in that case held that the employer's obligation to impose discipline within a reasonable period was a procedural obligation, rather than a substantive one, and that it was based on the impact that delayed discipline could have on the grievor. The impact could include "a conclusion that the potential misconduct has been condoned and/or prejudice in responding to the discipline once it is finally imposed." He found that in that case, some of the delay was not justified by the employer, but that there was no evidence that the delay resulted in any prejudice to the grievor, and that the grievor could not, given his role as a peace officer, been under the impression that his conduct was condoned or accepted by the employer.…

 

[355] The grievor was first advised of the investigation on April 26, 2016. He continued to work after receiving this notice and was provided with the first draft of the preliminary investigation report on July 27, 2016, prior to his suspension on August 29, 2016. Most of the allegations of misconduct were identified in the preliminary investigation report. Although the investigation took just over a year (the final investigation report is dated May 8, 2017), I find that the time taken was not inordinate. The grievor was given time to respond to the two preliminary investigation drafts and the employer followed up on additional witnesses he requested to be interviewed.

[356] The time between the commencement of the investigation and the discipline imposed also cannot be regarded as condonation by the employer, since he was advised at the beginning of the investigation what misconduct was being investigated and advised of further allegations of misconduct at the time of his suspension.

[357] The time between the receipt of the final investigation report (May 8, 2017) and the first scheduled disciplinary hearing (June 1, 2017) is also not an inordinate time. I note that the employer rescheduled the disciplinary hearing for July 6, 2017, at the request of the grievor.

[358] Therefore, I find that the length of the investigation and the time between its conclusion and the discipline being imposed is not a mitigating factor.

f. Lack of training or guidance on conflict-of-interest requirements

[359] The grievor has alleged that he was not provided with any training or guidance on the conflict-of-interest issues as they applied to his work as a physician. The conflict-of-interest letter that he received clearly set out his conflict-of-interest obligations under the Code. He replied to questions about his outside work from the conflict-of-interest office. If he was unclear of his obligations, as set out in the letter, he had an opportunity to raise those issues. I have already determined that he was aware, or ought to have been aware, of those obligations shortly after receiving the conflict-of-interest letter and he did not grieve those obligations There was no obligation on the employer to provide additional resources, such as training, to explain what was clearly set out in the letter.

g. Reconciling the duty of care as a practising physician with the conflict-of-interest obligations as an employee

[360] The grievor submitted that as a practising physician, he has a legal duty of care to his patients. It was therefore his position that the employer’s failure to reconcile his professional obligations as a physician, including his legal duty of care, with his conflict-of-interest obligations as an employee is a mitigating factor in this case. The grievor noted that none of the applicable policies address the conflicts that may arise from a physician working both for the employer and as a practising physician. He also submitted that the fact that Mr. Sabourin and Ms. Parker are not physicians is important to note, “since they did not allow for any flexibility when imposing discipline by taking the grievor’s legal and professional obligations into account”.

[361] The requirements that the conflict-of-interest office set out in the letter, listing the conditions that applied to his outside work as a physician, were clear. The grievor raised no concerns about balancing his legal and professional obligations as a practising physician with his duties as a Health Canada employee. If the grievor had any such concerns, he should have sought clarifications from the conflict-of-interest office.

[362] In addition, the employer has no obligations related to the grievor’s duty of care to his patients. That obligation rests solely with him, as these duties were not related to his work for the employer.

2. Aggravating factors

[363] The employer has submitted that the grievor’s lack of remorse or an acknowledgment of wrongdoing is an aggravating factor. The grievor argued that he was not required to apologize or show remorse for actions that were unsubstantiated or condoned by management.

[364] I accept that the grievor does not believe that he was guilty of any misconduct. The evidence, however, shows that most of the alleged misconduct was proven and not condoned. If the grievor had expressed remorse or apologized for his conduct, I would have considered that to be a mitigating factor. The failure to show remorse or acknowledge wrongdoing is not an aggravating factor, however. A grievor cannot be compelled to express remorse or acknowledge wrongdoing. The failure to recognize one’s conduct as misconduct can, however, be used to assess rehabilitative potential. The rehabilitative potential of the grievor is discussed in the later section of this decision on the bond of trust.

[365] I agree that the grievor’s position as a manager is an aggravating factor. As a manager, the grievor was responsible for approving leave and travel requests of his subordinates. A deputy head relies on managers to discharge their managerial duties appropriately, and that trust is at risk if a manager engages in misconduct around leave and travel authorizations. The grievor’s failure to follow the rules when he was also responsible for enforcing them is an aggravating factor.

[366] The employer also submitted that the grievor’s attitude toward management, in particular to Ms. Parker, was abusive and insubordinate. It submitted that this was an aggravating factor.

[367] I find that the grievor’s antagonism toward management is not an aggravating factor in the circumstances of these grievances. His employment was not terminated for abusive behaviour or insubordination. That conduct was not mentioned in the letter of termination in support of the employer’s decision. It is not appropriate to consider, at the adjudication stage, new grounds for discipline as an aggravating factor.

[368] Evidence related to an unwillingness to be supervised and antagonism to managers is often considered when determining the remedy for an allowed grievance. It is particularly relevant when determining whether reinstatement is appropriate. However, it is not relevant at this stage of the analysis.

3. The bond of trust

[369] The employer has submitted that the bond of trust is broken and that confidence in the public service would be eroded if the grievor’s behaviour was not considered serious enough to warrant termination. The employer also argued that the grievor’s failure to accept responsibility for his conduct demonstrates a lack of rehabilitative potential. The grievor submitted that the employer had not demonstrated that the bond of trust is broken.

[370] As noted in Woodcock v. Canada Revenue Agency, 2020 FPSLREB 73 at para. 63:

[63] … Progressive discipline should certainly be applied when misconduct which is concerning occurs but is not so serious as to break the bond of trust between an employer and an employee. However, when misconduct is serious enough, termination can be justified, even when it is the first recorded incident of misconduct.

 

[371] As in Woodcock, the repetitive nature of the grievor’s misconduct is very concerning. In addition, he continued to engage in misconduct after he was advised of concerns by Ms. Parker on March 30 and April 1, 2016. In addition, although he was not formally disciplined in 2014 for not obtaining travel authorization, he was given a stern warning from Dr. Klein and continued not to obtain appropriate travel authorization.

[372] In Brazeau, the adjudicator referred to Brown and Beatty on rehabilitative potential, as follows: “The critical question for arbitrators … is the grievor’s capacity to conform to acceptable standards of behaviour in the future.” The answer to this question involves assessing the grievor’s ability and willingness to reform and rehabilitate, to re-establish in a viable fashion the trust that the employer is entitled to have in him. When assessing whether a viable employment relationship can be re-established, great weight must be placed on the grievor’s recognition of the reprehensible aspects of his behaviour. The underlying assumption is that employees who recognize the impropriety of their behaviour are more likely to meet their employer’s legitimate expectations in the future and, thus, more likely to be successful in their continued employment with that employer. In other words, the grievor’s recognition of the impropriety of his actions may justify giving him another chance.

[373] In Brazeau, the adjudicator found that the grievor’s admission of responsibility came too late in the process to be considered as a mitigating factor. Another adjudicator noted in Oliver v. Canada Customs and Revenue Agency, 2003 PSSRB 43 at para. 103, as follows:

[103] The recognition of culpability or some responsibility for his or her actions is a critical factor in assessing the appropriateness of the discipline. This is because the rehabilitative potential of the grievor is built on a foundation of trust, and trust starts with the truth. If a grievor has misled his employer, failed to cooperate with the legitimate investigation of allegations of conflict of interest, and refuses to admit any responsibility in the face of evidence showing wrongdoing, then re-establishing the trust necessary for an employment relationship is impossible.

…

 

[374] In this case, the grievor has not recognized his misconduct. In the circumstances before me, and in the absence of any recognition from his part that his actions were improper, I find that the bond of trust between employer and employee is irretrievably broken. In other words, I find that, as the grievor failed to show an ability and willingness to reform and rehabilitate, it is more likely than not that the trust that the employer is entitled to have in him cannot be re-established in a viable way.

4. Conclusion on the proportionality of the disciplinary action

[375] I have determined that the grievor did engage in the following misconduct: using employer resources for outside employment; working at his outside employment during his work hours for the employer; taking unauthorized leave and unauthorized travel; and using his personal email account for confidential information, contrary to employer policy.

[376] The misconduct is serious. Termination of employment is a valid option in light of the seriousness of that misconduct. The mitigating factors are not sufficient to make termination an excessive disciplinary action in the circumstances of this case. The aggravating factors, as well as the absence of rehabilitative potential, reinforce the conclusion that termination of employment was not excessive.

[377] Accordingly, the grievance against the termination of employment is dismissed.

C. The suspension

[378] The employer has set out three alternative positions on the suspension grievance: it is moot because the termination of employment was backdated to the start of the suspension; the suspension was administrative and the Board has no jurisdiction over it; and if the suspension was not administrative, the grievor’s misconduct warranted a disciplinary suspension.

[379] I note that it is not open to the employer to change the grounds for the purported administrative suspension to disciplinary grounds, as it has suggested in its alternate argument: see Canada (Attorney General) v. Heyser, 2017 FCA 113 at para. 38.

[380] The grievor argued that the suspension was disciplinary in nature and that the employer could not backdate the termination of employment to the date of the suspension because the employer did not know most of the facts supporting the termination at the time of the suspension.

[381] The parties referred me to McManus. I agree with the characterization of the conclusion of that decision as set out by the Federal Court of Appeal in Bétournay (at paragraph 56): “…the employer cannot make a termination retroactive to a date prior to the date on which it had just cause to impose such a disciplinary action. In other words, each disciplinary measure must be justifiable at the time it is imposed”.

[382] Bétournay is the most recent examination by the court of the backdating of terminations to the start of a suspension. In that case, the misconduct that was relied upon by her employer to suspend Ms. Bétournay was the same as the misconduct that ultimately led to her termination. The court concluded that the findings of the investigation on which Ms. Bétournay’s employer relied to suspend her did not differ from the findings of the final report issued several months later. The court stated, at paragraph 50: “First, there is no question that prevailing arbitral case law suggests that an employer can use the start date of a suspension as the effective date of a termination”. It then concluded the following (at paragraphs 65 to 67):

… The employer’s reasons for deciding to terminate the respondent existed and were identifiable as of July 10, 2015, to the extent that the investigation was completed. According to the Board’s undisputed determinations, the interviews had been completed at that time … and the respondent had admitted, on July 8, 2015, that she had accessed the Agency’s network for personal purposes …

We are not dealing here with a situation where the investigation was not finished or where the employer relied on reasons other than those of which it had knowledge at the time the termination was imposed.

Perhaps, as the respondent claims, the Agency did not notify her of her dismissal until October 27, 2015, because it had not yet decided on the final sanction to impose, even though it had collected, by July 10, 2015, all of the facts on which it would eventually base its decision. However, we cannot infer from this that the termination was for cause only as of October 27, 2015. What matters is that the facts support the decision taken at the time it took effect. Accepting the respondent’s position would have the perverse effect of encouraging the employer to make a decision as quickly as possible and as soon as the facts are known, rather than properly weighing all of the relevant considerations before deciding on the most appropriate sanction.

 

[383] In Campeau v. Deputy Head (Canada Border Services Agency), 2019 FPSLREB 123, the Board discussed the application of the reasoning in Bétournay to the backdating of termination of employment. The parties did not refer me to this decision, although it was issued by the Board prior to their submissions.

[384] In Campeau, the Board found that although the suspension was purportedly administrative, the facts on which it was based were the same as those relied on for the ensuing termination. As a result, the Board determined that the suspension and ensuing termination were part of the same disciplinary process and it needed to make only one assessment of it “which will apply to the preliminary suspension that morphed into the termination …” (at para. 158).

[385] In the case before me, the situation is slightly different. At the time of the grievor’s suspension, the investigation was still underway, and the investigator had not yet interviewed the witnesses (the bulk of the interviewees were interviewed in September 2016).

[386] In Bétournay, the court stated that it was not dealing with a situation where the investigation was not finished OR where the employer relied on facts other than those of which it had knowledge at the time the suspension was imposed (or at the date to which the termination was backdated). I understand from this finding, that the fact that an investigation is not finished is not determinative — it also requires an assessment of the knowledge of the employer of the facts it relied on at the time that suspension was imposed (or at the date to which the termination was backdated), in this case, August 29, 2016.

[387] The preliminary investigation report draft of July 22, 2016, is therefore of critical importance as it establishes what the employer had knowledge of at the time of the suspension. The employer had knowledge of the following actions of the grievor in the month prior to the suspension:

· The use of his Health Canada email account as a point of contact for his Hospital duties;

· Being on call at the Hospital during some of his Health Canada working hours;

· Meeting with Hospital patients during Health Canada working hours;

· Use of his Health Canada cellphone for his Hospital duties; and

· Absences without leave for 24 days, between August 2014 and February 2016.

 

[388] In addition to these actions, the suspension letter also refers to the following:

· The default of a clinical trial;

· At the time of the default he was not on approved leave;

· An email sent to his personal email account that contained classified information; and

· The discovery of prescriptions addressed to the grievor at a Health Canada fax machine.

 

[389] I have already determined that the default of the clinical trial is not a valid ground of discipline, as the employer did not rely on this action in its letter of termination.

[390] The second draft of the preliminary investigation report (completed on December 7, 2016) provided more details on the initial allegations including an increase in the number of days absent without leave to 28 days. It added additional examples of failure to obtain proper travel authorization and playing golf on Wednesday afternoons. I have already found that the employer did not include the playing of golf in the letter of termination as a ground of discipline.

[391] In conclusion, at the time of the suspension, the employer had knowledge of almost all the facts it relied on at the time that termination was imposed. The only additional facts it did not identify at the time of the suspension was the abuse of travel authorizations. The employer also did not know the full details of the misconduct, including its extent. For example, the letter of suspension referred to one instance of Health Canada confidential information sent to his personal email account where the final investigation revealed twelve emails that contained confidential information.

[392] The employer did not have the full picture of the grievor’s misconduct at the time of the suspension but (apart from the failure to obtain travel authorizations, which I address in the next paragraph) it did have a picture of his misconduct and knowledge of facts related to each of the grounds of misconduct that it relied on. As noted in Bétournay, the perverse effect of the grievor’s position on the suspension would be to encourage the employer to make a decision as quickly as possible, rather than “properly weighing all of the relevant considerations before deciding on the most appropriate sanction” (at para. 67).

[393] The only reason in the termination letter that the employer relied on that it did not have knowledge of at the time of the suspension was the failure to obtain travel authorization. The employer had sufficient grounds to terminate the grievor’s employment without this ground of misconduct. In other words, the grievor’s conduct was serious enough, even without considering his failure to obtain travel authorization, to justify a termination of employment as of the date of suspension.

[394] Therefore, I conclude that the employer was justified in backdating the termination to the commencement of the suspension without pay. Accordingly, the grievance against the suspension without pay is dismissed.

D. The investigation grievance

[395] The grievor filed a grievance in May 2017 against the ongoing investigation. In it, he stated that he was grieving the “unreasonable delays as well as the unjust and arbitrary nature of this investigation”. He alleged that this constituted abuse of authority, a denial of procedural fairness, and disguised discipline.

[396] The employer submitted that the Board does not have jurisdiction to consider a grievance against the investigation itself. The grievor made no submissions on the Board’s jurisdiction to hear a grievance challenging the investigation.

[397] I find that the Board does not have jurisdiction over the grievance against the investigation specifically. Section 209 of the FPSLRA states that a grievance can be referred to adjudication if it is related to the application of a provision of a collective agreement or a disciplinary action resulting in termination, demotion, suspension or financial penalty. Although the grievance did refer to articles in the applicable collective agreement, the grievor made no submissions on how the collective agreement was engaged. When the grievance was initially presented to the employer (May 9, 2017), the grievor was still at work. Accordingly, there was no disciplinary financial penalty related to the investigation itself. I have already addressed the suspension without pay while the investigation was being completed and the time that it took the employer to complete its investigation.

[398] As mentioned earlier, a hearing before this Board is a de novo, or fresh start, hearing. Any procedural irregularities in the investigation were cured by the adjudication hearing before the Board; see Tipple (1985) and Patanguli.

E. Bad faith allegations

[399] The grievor submitted that he should receive damages for the bad faith of the employer in the investigation and the discipline imposed. In light of my findings that the employer has established cause for discipline and that termination was not excessive in the circumstances, and in light of my determinations that the three grievances are dismissed, I do not need to address these submissions. It is difficult to conceptualize how actions that meet the applicable legal requirements can violate a duty of fair dealings and good faith in the manner of termination. Nevertheless, the damages sought by the grievor are compensatory in nature and he has presented no evidence of harm resulting from the bad faith he is alleging.

[400] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[401] The grievances are dismissed.

[402] The grievor’s request to strike five paragraphs of the employer’s rebuttal is dismissed.

[403] The name of the third party in Exhibits E-56 and E-57 are ordered redacted.

August 24, 2022

Ian R. Mackenzie,

a panel of the Federal Public Sector

Labour Relations and Employment Board