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166-2-32671 and 32672 (2004 PSSRB 151)
Hillis v. Treasury Board (Department of Human Resources Development)
Before: S. Matteau
Appearances: D. Seaboyer, for the Grievor; R. Armstrong, for the Employer
Decision rendered: October 19, 2004
Suspension - Termination as a result of loss of reliability status - Hearsay evidence - Appropriate weight to be given to evidence - Code of Conduct - Values and Ethics Policy - Disguised disciplinary sanction alleged - Bad faith in the disciplinary investigation alleged - No obligation to search for alternative positions - Double jeopardy - the grievor's work entailed the verification of earnings for persons receiving EI and, as such, she had access to confidential information concerning private citizens - the employer received a complaint from a private citizen (GB) who was acquainted with the grievor through membership in the same Strata Council, alleging that the grievor spent time at work on personal business and alleging that he had paid the grievor for information she provided to him from a government database - GB later denied that he had paid for the information but alleged that the grievor had asked for payment in return for providing him with more specific information - GB wanted the information in order to track down individuals who owed him money under court orders - the grievor admitted that the documents in GB's possession were printed by her but denied having given them to GB, although she did admit orally going over the information contained in the documents with him - she alleged that he must have appropriated them when she left them unattended during a Strata Council meeting at which he was present - she claimed that she was unaware of the court orders but had printed out the documents when GB contacted her regarding possible EI fraud - she had decided to do some investigation on her own prior to turning the cases over to an Investigating Officer but after some inquiries, she had decided to drop the matter - the employer alleged that this was not the proper procedure to follow and that the grievor was aware of the proper procedure regarding the reporting of possible fraud - the employer concluded that the grievor had released (either orally or in writing) confidential client information to an unauthorized individual - the employer felt that the grievor's employment should be terminated but Treasury Board did not agree and a 10-day suspension was imposed - following the disciplinary investigation, a security investigation took place-review of reliability status was in accordance with the policy which provided for review when adverse information came to light - the result was revocation of the grievor's enhanced reliability status - the grievor was found to have demonstrated lack of concern for security and confidentiality - the grievor should have followed the Third-Party Reporting process for reporting possible cases of fraud - no evidence that grievor asked for payment in return for the production of information to GB-suspension warranted and 10-day suspension not unreasonable - no evidence of bad faith in the disciplinary investigation - with respect to the termination, adjudicator had to assess the fairness and reasonableness of the process by which the decision was made - the employer's investigators proceeded fairly - the grievor was not notified of the potential consequences of the investigation - the breach was subsequently cured by availability of adequate alternative remedy - the employer did not fail to comply with the rules of procedural fairness and reasonableness - actions were in keeping with the policy and the Deputy Minister had the authority to make the decision he made - double jeopardy was not applicable as revocation of reliability status and the subsequent termination were not disciplinary in nature but rather were administrative actions - no disciplinary intent on the part of the employer was proven by the grievor - investigation was within the limits of the policy which provided for review on an ongoing basis - no bad faith on the part of the employer - termination was not disguised disciplinary measure - no obligation on the employer to search diligently for alternate position, given that the grievor had lost the minimum security status.
Cases cited: Faryna v. Chorny,  2 D.L.R. 354 (QL); Kampman v. Canada (Treasury Board),  2 F.C. 798 (C.A.) (QL); Tipple v. Her Majesty the Queen (Treasury Board),  F.C.J. No. 818 (C.A.) (QL); Turgeon v. Treasury Board, PSSRB file No. 166-2-6925 (1979); Re Ontario Produce Co. v. Teamsters Union, Local 419, (1992), 25 L.A.C. (4th) 195; Singh v. Canada (Public Works and Government Services),  F.C.J. No. 891.