Hampton and Treasury Board (Revenue Canada - Taxation)

Full Text

166-2-28445
Hampton and Treasury Board (Revenue Canada - Taxation)

Before: P. Chodos
Appearances: R. Fredericks, for the Grievor; H. Newman, for the Employer
Decision rendered: November 23, 1998

Termination (Disciplinary) - Discipline - Discharge - Use of protected information for personal benefit - Promissory estoppel - Compensation instead of reinstatement - the grievor, a team leader with Revenue Canada, retrieved questions and answers developed for a competition on which he was applying from the office of one of the selection board members - the grievor then used this information during the written examination, and the following interview, administered during the selection process - seven weeks after the examination and interview, the grievor admitted having used the protected information - during this period, the grievor was facing substantial personal stresses - the grievor's supervisor, who investigated on the grievor's conduct, was of the view that a one-month suspension would be appropriate in the circumstances - the employer argued that the grievor's conduct was more than the result of the spur of the moment, stressing that he had several opportunities to change his mind about using the protected information - the employer submitted that the grievor, as a team leader, was well aware of the importance of maintaining the integrity of the selection process, as he was a member of another selection board - the grievor responded that his behaviour had been irrational and was not akin to theft - he submitted that he was sincerely remorseful for what he had done - he alleged that management had told him that, were he to admit to having used the protected information, discipline would be restricted to a written reprimand - the grievor requested compensation instead of reinstatement - the employer replied that the adjudicator should interfere with the discipline imposed only if it was not within the range of reasonable responses - the employer added that there had been no agreement to limit discipline to a written reprimand in exchange for the grievor's admission - the employer also objected to an award of damages - the adjudicator found that the grievor's conduct had been spontaneous and unpremeditated - the adjudicator further found that the grievor's substantial personal stresses were an important mitigating factor - the adjudicator concluded that discharge was not justified and that a four-month suspension would have been appropriate in the circumstances - however, at the grievor's request, the adjudicator awarded a compensation equivalent to nine months' salary instead of reinstatement.

Grievance allowed in part.

Cases cited:  Toronto East General Hospital (1975), 9 L.A.C. (2d) 311; Thomas (466-H-155); McMorrow (166-2-23967); Lawrence (166-2-21341); Anonsen (166-2-17113); Slattery (166-13-17850).