GSB# 2003-3741

UNION# 02-48

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Augustine)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Ian Thompson Canadian Union of Public Employees

FOR THE EMPLOYER

William Gale Grosman, Grosman & Gale LLP Barristers and Solicitors

HEARING

December 14, 2004; May 9 &10, June 13 & 15, November 7 & 30, December 8, 2005; January 11 & 20, February 16, 2006.

Decision

The Proceedings

In this matter the union grieves that the discharge of Jeffrey Augustine was unjust. The Workplace Safety and Insurance Board (hereafter, W.S.I.B. or “the employer”) says it dismissed him from his employment as a Claims Adjudicator because he conspired with a previous claimant and another employee to defraud the W.S.I.B. of approximately $55,000.00. The nub of the employer’s case is that a Payment Specialist, Robert Falby, authorized the reopening of a claim for benefits that had been allowed in 1999 in favour of Otis Wilson, an employee of Bell Canada. The grievor is alleged to have authorized the further payments to Mr. Wilson. The three of them are alleged to have split the money that had been fraudulently disbursed.

In large measure the employer’s case rests upon a tape-recorded statement given by Mr. Falby to the W.S.I.B. investigator Mr. Gladish.

The Facts and Evidence

A convenient overview of the concerns raised in this matter is to be found in a memorandum dated June 14, 2002 which is as follows:

Background

This claim was established for an accident of April 26, 1999 when this worker who was employed by Bell Canada slipped and fell. The worker per the Form 7 and Form 6 on file was residing at 1 Davisbrook Blvd., Scarborough, Ontario. Entitlement was accepted for left wrist injury. Loss of earnings benefits were granted (details below). The worker’s benefits were terminated when he was declared recovered from the injury on July 5, 1999. He was verbally advised by the Adjudicator Mr. Jim Butler on July 6, 1999 of the termination of benefits. This was confirmed in a decision letter dated July 21, 1999. The worker objected to the decision and was issued access and an objection form on September 2, 1999. No other correspondence has been received or telephone calls since that time per file record. The claim has been inactive since that time.

Issue

A daily report is produced by Treasury which highlights cheques issued in excess of $10,000. This report is reviewed by Ms. Todd, Manager Schedule 2 Industry Sector on behalf of the Sector. She noted a cheque issued on June 12, 2002 payable to the worker in the amount of $11338.15 for the period January 1, 2001 to May 21, 2001. (copy attached) Since the claim has been inactive since 1999 she referred the matter to Wanda Crichton, the Manager responsible for Bell Canada claims in the Simcoe Schedule 2 Industry Sector. She reviewed the claim and noted no explanation on file for the payment. Using system searches no other claims were located for this worker. She also noted the worker’s address had been changed without any documentation on file.

It was also noted that the WBS payment history screen showed this payment had been authorized and processed by User ID’s in the Chemical Sector, as had several others since April 2001. The Chemical Sector Business Assistant and Manager were asked to investigate further via email.

Ms. Bianchi, Business Assistant MEE, approached Mr. Rovazzi regarding the email. Mr. Rovazzi reviewed the claim and noted also there had been no activity in the file since 1999 and the payment history screen showed 7 authorizations by Chemical Adjudicators since April 2001.

At this point, Mr. Rovazzi approached Mr. Nigel Hunte, Manager Chemical Sector to discuss the findings, as it appeared unusual that an adjudicator from the Chemical Sector would be involved in a Schedule 2 claim without any documentation.

Mr. Hunte suggested that a meeting be held with Mr. Clark Campbell Director. During the meeting, Mr. Hunte stated that he knew the worker as he played basketball with him. Also, other W.S.I.B. staff were acquainted with the worker as well as playing basketball with him. Mr. Hunte named Robert Falby, Payment Specialist and Jeff Augustine, Claims Adjudicator for the Chemical Sector.

It was agreed that further investigation was required by Sector Managers Ms. Todd, Ms. Crichton and Mr. Rovazzi and they approached Mrs. Belzun, manager WBS.

Ms. Belzun reviewed the claim for all disbursements made and found that 7 cheques were issued to the worker between April 2, 2001 and June 12, 2002. She confirmed there has been no activity in the imaging folder of this claim file since 1999. The benefits that were allowed in this claim ceased as of July 5, 1999 and were all full advance reimbursement to the employer Bell Canada.

A cheque was issued on April 2, 2001 payable to the worker in the amount of $8893.14. A stop payment was placed on this cheque. On April 30, 2001 the address was changed to 25 Henry Lane terrace #548, Toronto, Ontario and the $8893.14 cheque was reissued on May 1, 2001. Subsequent to this, 5 additional cheques were issued to the worker. The total of all cheques issued and cashed since April 2001 is $54,464.08. These cheques were for the benefit period of July 5, 1999 to May 21, 2001.

Based upon a review of the authorizations on the payment history screens it appears that there are 3 User Id’s involved in creating the entitlement authorizations and/or disbursements through the LDET or APAY screens in WBS since April 2001.

These User ID’s are:

UQP 056 Robert Falby – Payment Specialist

UAD 058 Michelle Reid – Claims Adjudicator

UAJ 403 Wing Ong – Claims Adjudicator

The address of the worker was updated on WBS by UKU 500 Antonella Mammone, Administrative Services on April 30, 2001.

There is no documentation on the file record of this address change.

The employer’s first witness was Nigel Hunte. He explained that claims for benefits are processed by teams of adjudicators which are organized by industry. He was the manager of the Chemical Sector, which had two teams in Toronto and one team in London. Claims are assigned to a Claims Adjudicator in the sector in which the injured worker was employed. They assess the claim and decide whether to allow it. Once a determination is made to allow a claim, it is referred to a Payment Specialist who calculates the level of benefits and authorizes the initial benefit payment. Thereafter, any extensions of the benefits are authorized by a Claims Adjudicator. At the time these payments were made to Otis Wilson, each Claims Adjudicator had their own computer work station that required their user ID and password to log in so that they could perform their work. The computers logged out automatically after a period of five minutes of inactivity. Once a Claims Adjudicator was logged in they had access to any injured worker’s file except for W.S.I.B. employee claims and those that were specifically security coded. Otis Wilson’s claim was not security coded. He was an employee of Bell Canada, which is a Schedule 2 employer, meaning it was self-insured and administered by the Schedule 2 Sector. It was not meant to be processed by the Chemical Sector.

The Claims Adjudicators in the Chemical Sector in Toronto worked at workstations arranged in three pods of four or six stations. Their cubicles were separated by dividers. It was possible to see over the dividers; however the centre dividers were slightly higher than the side and front dividers.

Mr. Hunte said that employees were not always careful about keeping their computer passwords confidential. Some wrote it on their desk blotters or kept it near their computers. He would discourage such practices and also discouraged employees from leaving their computers logged on if they left their desks for any reason. Mr. Hunte testified that he was made aware of the payments to Otis Wilson by the manager of the Schedule 2 Sector. Claims Adjudicators were authorized to issue cheques up to $15,000. However, any cheque over $10,000 generated a payment notice to the manager of the associated sector. In this case the Schedule 2 Sector received the payment notice and saw that a Claims Adjudicator in the Chemical Sector, not the Schedule 2 Sector, had authorized a payment to Otis Wilson for $11,338.15. That manager went to one of Mr. Hunte’s colleagues, who brought the matter to Mr. Hunte’s attention. He immediately recognized the recipient, Otis Wilson, as an acquaintance with whom he played basketball and cards during some lunch hours. In cross-examination he said that he, Robert Falby and others had played basketball together for a number of years. Otis Wilson began playing at Robert Falby’s invitation. The grievor was not part of the basketball games. Mr. Hunte also occasionally played cards at lunchtime with Falby, Wilson, the grievor and others. He described Wilson as a friend. Mr. Hunte described Mr. Falby as a close personal friend. They attended each other’s weddings. He and the grievor have also socialized in the past. Mr. Wilson would occasionally socialize with Falby and Hunte but seemingly not with the grievor.

In his evidence, Mr. Hunte also reviewed the process for issuing cheques over $10,000 and for arranging to have a cheque picked up rather than mailed. It was his view that any cheque greater than $10,000 would require a manager to authorize its release by way of signing off on the cheque authorization sheet. It was that requirement that brought these transactions to management’s attention.

Wanda Crichton also testified. She was a manager in the Schedule 2 Industrial Sector. She normally oversaw claims arising from Bell Canada. Schedule 2 employers are self-insured and are responsible for the cost of their claims. The Board administers those claims. Bell Canada was one of the Schedule 2 employers that continued to pay the wages of employees who were off work due to a workplace injury. Accordingly, the W.S.I.B. would not normally issue cheques directly to such claimants as had occurred with the payments to Otis Wilson. Ms. Crichton also testified that cheques to claimants that were greater than $10,000 are reported to the associated sector for review and approval. The Schedule 2 managers took turns reviewing that report. On June 14, 2002, a fellow manager, Maury Todd, brought to Ms. Crichton’s attention the cheque for $11,338.15 to Otis Wilson. She reviewed Mr. Wilson’s 1999 claim, saw that he had returned to work and that there had been no activity beyond July 1999. There was no rationale or documentation on file as to why he was obtaining direct payments in June 2002. She and Maury Todd took their concerns to Rose Bianchi, the Business Assistant in the Chemical and Plastic Sector, it being the sector that authorized the payment. Their own Business Manager was not available. Bob Rovezzi, the manager of the Municipal, Electric/Chemical Sector and Sue Belzen the manager of the Computer “Worker Benefit System” were also included in the discussion. Ms. Belzun looked at the System entries and also concluded that there was no documented rationale for the payments. They referred their concerns to their supervisors by way of the June 14, 2002 memo set out above and Ms. Crichton suggested that it might be appropriate to involve the Special Investigations Branch of the W.S.I.B.

Under cross-examination, Ms. Crichton elaborated upon the daily cheque report. She said that individual Claims Adjudicators, once fully trained, may authorize individual payments up to $15,000. Beyond that amount, payments must be approved by a manager who holds a corresponding authority. Her authority extended from $15,000 to $50,000. The daily cheque report issued by Treasury was instituted in the 1990’s when the Claims Adjudicators’ authority had been up to $10,000. Accordingly, the report still showed cheques in the amount of $10,000 to $15,000, even though those amounts were within the Claims Adjudicators’ limits at the time these cheques were issued. The manager’s responsibility was to review the report and sign an authorization for cheques greater than $15,000, which was faxed to Treasury so that the cheques could be released. Treasury would not wait for such authorization in the case of cheques of $15,000 or less.

Jim Butler also testified. He reviewed a report entitled “Workers’ Benefit System Payment Authorization History” pertaining to Otis Wilson. He identified his activity on the file by referencing his desk number and User I.D. as displayed on the report. His last activity was to “final” the claim (“to final” being the Board’s term stopping payments on a file) on July 6, 1999. He said that he had advised Mr. Wilson, by letter of July 2, 1999 that his claim was being finaled as of July 5, 1999 because he was fit to return to work. Mr. Wilson disagreed and indicated by letter dated August 6, 1999, that he would appeal that decision. Accordingly, Mr. Butler sent the claim to the Access Department to have the file material provided to Mr. Wilson. That ended his involvement with the claim.

Sue Belzun also testified. She managed the “Workers’ Benefit System”, the computer system used to track payments to claimants. She also supervised eight Payment Specialists. Each payment specialist served a specific complement of the 110-120 Claims Adjudicators. The role of the Payment Specialist is essentially to review the adjudicator’s initial request to authorize payment to a claimant to ensure that payment is supported by appropriate documentation. That request, a “Payment Authorization”, is made using the “Workers’ Benefit System”.

Ms. Belzun said that she was approached by Wanda Crichton and Bob Rovazzi and asked to review Otis Wilson’s payment history. She looked at every payment, reviewed the file and concluded that the seven disbursements after the file was finaled in 1999 were not supported by the necessary documentation. The first payment was authorized on March 30, 2001 by a Payment Specialist, Robert Falby, and provided for 16 weeks of benefits to be paid directly to the worker. There was nothing in the file to support either the 16 weeks of benefits or the direct payment. That payment was sent to an address in Scarborough, Ontario. A stop payment was put on that cheque, the address was changed and a replacement cheque issued April 2, 2001. The subsequent payments were authorized by a Claims Adjudicator and each payment was marked as final, with the subsequent payment noted as an extension, all of which was within the normal purview of a Claims Adjudicator. Ms. Belzun’s review was assisted by an Information Technology employee, Kiev Tran. They determined that the user ID of the payment specialist was that of Robert Falby and the user ID’s of the Claims Adjudicators who had extended the payments were those of Wing Ong and Michelle Reid.

George Gladish also testified for the employer. He was a senior investigator with the W.S.I.B.’s Special Investigation Branch. He was responsible for the investigation of the concerns raised by Wanda Crichton and the other managers who had become concerned about the payments to Otis Wilson. In his evidence, he reviewed the details of his investigation, including his investigation of W.S.I.B. employees who were implicated because their user ID’s were involved with activity on Otis Wilson’s claim since it had been finaled in 1999. Those employees included Robert Falby, Michelle Reid, Wing Ong and Antonella Mammone. Ms. Mammone was quickly eliminated, as she had merely changed the address as a matter of her clerical function. He also investigated Nigel Hunte and the grievor because Otis Wilson knew them through the lunch-hour basketball games. Mr. Gladish made attempts to trace the movements of these six people on the relevant dates, reviewed telephone logs detailing calls to and from their telephone extensions and made other such enquires. As his investigation continued, the number of employees in whom he was interested waxed and waned. He contacted the bank branches where the benefit cheques were certified and where they were cashed. He obtained Mr. Wilson’s bank records and concluded that all six cheques could be traced to his account and on each occasion large withdrawals had been made which were roughly consistent with a division of the proceeds into thirds. He also obtained Mr. Augustine’s bank records.

Mr. Gladish’s investigation reached a crescendo on July 16, 2002. On that day he and his superior, Adrian Moores, interviewed Mr. Wilson at Bell Canada. Mr. Wilson did not allow them to tape the interview. Mr. Wilson admitted receiving the money, denied knowing he was not entitled to it and did not implicate any W.S.I.B. employees. After being questioned, he was told that he would likely be charged with fraud. That afternoon they interviewed Michelle Reid, Robert Falby and Jeff Augustine. Michelle Reid denied any knowledge of the payments. Mr. Falby confessed to his involvement and implicated Mr. Augustine and Mr. Wilson. Mr. Augustine declined to give a statement. The admission of Mr. Falby’s statement into evidence was opposed by the Union. Its admissibility was dealt with in previous GSB Decisions dated May 9, and June 15, 2005 and is further considered below.

Michelle Reid also testified. She denied having any involvement with payments to Otis Wilson. She also said that she kept her computer password on a piece of paper stuck to the underside of her keyboard. She often took breaks with the grievor. When she left her desk she did not shut her computer down. She believed that the terminal stayed active, under her username, for five minutes before timing out. Her workstation was accessible to any number of people.

Robert Falby also testified. He acknowledged that Otis Wilson had been a good friend for many years and also said that he and Mr. Augustine were friends who socialized outside of the workplace. He knew in 1999 that Mr. Wilson was in receipt of W.S.I.B. benefits but said he did not know the details. Mr. Falby acknowledged that the W.S.I.B.’s documents confirmed that it was his user ID that authorized the reopening of Mr. Wilson’s claim by paying him a sixteen-week extension and finalizing the claim. However, he described it as a routine matter that he would not, and did not, remember. He also disavowed any recollection of making the statement to Mr. Gladish, parts of which were tape-recorded. He confirmed that the tape-recording was indeed his voice and he agreed with the general accuracy of the transcription. He simply denied any responsibility for the utterances on the basis that he suffers from epilepsy and was in a pre-seizure state at the time the statement was taken. As he put it, “I can’t recall anything on that tape.” Nonetheless, in his cross-examination he could recall the events leading up to his questioning and the portion of the questioning prior to the recording being made. Mr. Falby’s evidence is dealt with in more detail below.

Wing Ong also testified. His was the other user ID which authorized the continued payments to Otis Wilson. He said that prior to the investigation into these matters he had never heard of Otis Wilson and never authorized any payments to him. He also said that prior to these events he would not lock his computer when he took short breaks or went to receive faxes. Those breaks might last as long as five minutes; his computer would automatically log-off after ten minutes. Further, if he were leaving his workstation for a brief period he would tell his co-workers so that they would be aware of his whereabouts. The corner of Mr. Ong’s workstation abutted the corner of the grievor’s, but they were in different rows. The common partition that separated those rows was higher than the partitions that separated Mr. Ong’s workstation from those in front of and behind him in his row. He said that if he and the grievor both were standing, they could see each other over the common partition. He could hear the grievor when he was speaking.

Joe Sgro also testified for the W.S.I.B. At the time, he was the Director of Quality Improvement. He had been advised on June 15, 2002 that the Special Investigation Branch would be interviewing one of his employees, Robert Falby. On June 16, 2002 he received a telephone call in which he was advised that Mr. Falby had been questioned, had confessed and had implicated others. He was to be put on a paid leave until the investigation was completed. Mr. Sgro attempted unsuccessfully to obtain advice from the Human Resources Department as to the process to be followed. He then briefed his superior, Brock Horseman, went to the Special Investigation Branch’s offices and met with Mr. Falby. The union objected to the introduction of any evidence relating to the subsequent discussions between Mr. Falby and Mr. Sgro because the grievor was denied his substantive right to union representation. That issue is dealt with below.

As Mr. Falby’s superior, it fell to Mr. Sgro to apprise himself of the details of Mr. Gladish’s investigation and complete his own investigation, which included an opportunity for Mr. Falby to rebut any allegations. By letter dated August 7, 2002 he afforded Mr. Falby that opportunity. In the meetings that followed, Mr. Falby made no mention of a medical condition or its manifestation at the interview with Mr. Gladish.

The grievor testified on his own behalf. He reviewed the process for authorizing payments to claimants. He said that he was aware that he could authorize payments up to $15,000 in value. He knew that the authorization limit had changed from $10,000 at some point. After that change he did not treat payment authorizations any differently if they were more or less than $10,000 in value. The grievor said that he knew Michelle Reid and Wing Ong as colleagues. He would occasionally go for breaks with Ms. Reid because she too was a smoker. He was a lot less close to Mr. Ong. The grievor could not recall ever having used either Ms. Reid’s or Mr. Ong’s computer terminal; but did say it was possible he may have used Michelle Reid’s if his terminal was not operating and she was away. If he did so, he would log in with his own user ID and password.

Mr. Augustine said that he knew Nigel Hunte very well, but not through the lunch-hour basketball session. They did occasionally play cards together over the lunch hour. Mr. Augustine got to know Mr. Falby through Nigel Hunte. He described their relationship as “friendly”. He testified that he did not know that Mr. Falby had implicated him in this fraud for two or three weeks after he was suspended. Mr. Augustine met Otis Wilson through Mr. Hunte and Mr. Falby. He said he never received money from Mr. Wilson and never authorized any payments to him.

Mr. Augustine was cross-examined about the various large cash deposits made to his account. He said that they may have been made by his mother or grandfather. He also said that from time to time deposits were made by “National Money Mart”, an enterprise that makes cash advances against upcoming pay-cheques. He had no explanation for deposits that were listed as “Br to Br”. He had no recollection of a $4,000 deposit on July 18, 2001, nor a deposit on October 1, 2001 for $1300.00, nor the details of a $2000 deposit on December 4, 2001. His evidence was that he would borrow money from his mother or grandfather against undetailed dividends from an investment company they shared. Either his mother or grandfather would deposit monies to his account. He simply had no explanation for, or recollection of, the various deposits to his account. Mr. Augustine also said that twelve months prior to his suspension he had a falling out with Mr. Falby; they did not speak for ten months. In that period he did not see Otis Wilson because Mr. Wilson was Mr. Falby’s friend.

Mr. Augustine was quick to admit the possibility of various implicating scenarios put to him in cross-examination, while denying any involvement in any of them. He said that when he was questioned by Mr. Gladish he noted Mr. Gladish’s tone and relied upon his experience, five or six years earlier, when he had previously been accused of fraud by the Board. On that basis, and from his legal knowledge gleaned from his roommate, who was a lawyer, he declined to give a statement.

Mr. Augustine was charged criminally for this alleged fraud. Those charges were dismissed. It was suggested to him in cross-examination that the charges were dismissed because he agreed to testify against his former lawyer/roommate, Richard Zemla. He said that they were not dismissed for that reason; rather, it was perjury charges against him that were dropped. Seemingly, he had perjured himself in the course of standing as a surety in a bail application brought by Mr. Zemla. Mr. Zemla had been charged criminally regarding an allegation that he had smuggled contraband into a jail. The perjury charges against the grievor were dropped in exchange for testifying against Mr. Zemla.

The Employer’s Submissions

The employer submitted that the facts of this matter are best understood when one applies a common sense approach to their rationalization. Mr. Wilson took approximately fifty-five thousand dollars. A Claims Adjudicator in the Chemical Sector facilitated those actions. Further, a Payment Specialist was involved. It required knowledgeable people to accomplish this fraud. We know it happened; the question is, who did it? Mr. Falby’s statement provides that answer and the investigator, Mr. Gladish, provided evidence of the taking of the statement that puts the lie to Mr. Falby’s claim that the statement was not true because of his medical condition.

An examination of the statement reveals that on numerous occasions he volunteered the grievor’s name without being prompted to, and he freely admitted his own involvement. This general overview fits with the fact that Mr. Falby, Mr. Augustine and Mr. Wilson were friends; the grievor worked in the Chemical Sector; the grievor was absent from work on all but one occasion when the cheques were disbursed and the grievor refused to participate in the investigation.

As to Mr. Falby’s explanation in his testimony that it was his illness that accounted for his statement, this was just one more progression in his shifting stories that tried repeatedly to explain away his involvement. At first he just denied saying what was attributed to him, he made claim that he suffered from a medical condition. His next explanation was that Mr. Wilson owed him money for CD’s. Again there was no mention of any medical condition. His claim that his statement resulted from a seizure first surfaced while he was involved in criminal proceedings. These are excuses that ought not to be accepted.

As to Mr. Falby’s representation rights under article 13, there is a clear distinction between investigation and disciplinary action. Mr. Falby’s statement was taken as part of the investigation. In any event, if there was a breach of Mr. Falby’s representation rights, his statement still stands as against Mr. Augustine since the grievor’s rights were not breached. To take such a technical position, as the union urges here, would call the administration of justice into disrepute. Finally, this case involves the W.S.I.B. and employees who are charged with the responsibility to protect the public purse. Such a breach of trust as this must be borne in mind when considering such technical objections.

Again, taking a common sense approach, Mr. Augustine got one-third of the money and was complicit in carrying out that fraud. It was appropriate for the Board to dismiss him and the grievance should be dismissed.

The Union’s Submissions

The union said that the jurisprudence is clear that the employer must establish such serious allegations of criminal behaviour with clear and cogent evidence to a high standard of proof. There is no clear or cogent evidence that Mr. Augustine was connected with the offence.

As to Mr. Falby’s statement, the union said that it was so tainted that it was worthless. The statement was taken contrary to Mr. Falby’s Charter and collective agreement rights to representation, and is not reliable. In this latter regard, the union noted that the first ten minutes were not recorded, he was not advised that he was free to leave at any time; the evidence does not establish that he knew he was obliged to tell the truth and that there would be adverse consequences if he didn’t tell the truth. The union also said that there is no indication Mr. Falby’s statement was credible, since it was lacking in detail and was replete with speculation and hearsay.

The union emphasized that the employer had not discharged its onus. Even having Falby’s statement, it did not present evidence to support the purported admissions and incriminating statements. Further, the evidence was said not to establish Mr. Augustine’s guilt given the general inadequacies of the investigation. Why did the Board notice only one of the three cheques that were over $10,000? Why was Nigel Hunte not investigated more promptly and thoroughly, given his personal connections to Mr. Wilson? Why did the investigator not more thoroughly explore the grievor’s bank statements, especially the branch-to-branch transfers? Why were Nancy Marchese, Otis Wilson and Adrian Moores not called as witnesses?

The union also reviewed the bank statements and submitted that only the wildest conjecture could tie the deposits with the payments to Otis Wilson. The union also reviewed the evidence of Ms. Reed and Mr. Ong and noted that neither one had given Mr. Augustine the passwords to their computers.

The Employer’s Reply Submissions

The employer said that it was only a matter of circumstance that one of the cheques over $10,000 was caught since an adjudicator is authorized to issue cheques up to $15,000. The investigation was said to have been adequate. The investigation also made adequate use of the bank statements to establish a co-relation between cashing of the cheques and the making of large withdrawals by Mr. Wilson on the one hand and significant deposits by Mr. Augustine on the other hand.

As to the failure to call witnesses, the employer stated that Mr. Wilson and Mr. Moores, who is no longer with the Board, failed to appear to their subpoenae and Ms. Marchese’s evidence would have been no more elaborate than her statement to the investigator, which was filed as an exhibit.

Mr. Falby’s statement was said to be reliable in that he made admissions against his own interest, a hallmark of reliability, and he was told a number of times that he did not have to answer the questions. With respect to the alleged breach of Mr. Falby’s Charter rights, the employer submitted that Mr. Falby was neither arrested nor detained, so those rights were not triggered. With respect to the alleged breach of Mr. Falby’s right to union representation, the employer submitted that the meeting of July 16 at which the statement was taken was part of an investigation, not a disciplinary meeting, so those rights were not triggered.

Reasons for Decision

It is convenient to deal first with Mr. Augustine’s testimony. His explanations for various significant deposits to his bank account have no depth of detail. Although he is not obliged to exonerate himself, the employer’s attempts to show that these deposits came from ill-gotten proceeds from this alleged fraud are circumstantial evidence of the fraud. There is a significant correlation between the cashing of the W.S.I.B.’s cheques by Mr. Wilson and the deposits to Mr. Augustine’s account.

Mr. Augustine’s assertion that he had fallen out with Mr. Falby, and by implication Mr. Wilson, is not convincing. He listed a number of people who could corroborate this fact, including his mother and Mr. Falby. None of these people were called and Mr. Falby was very vague in his testimony in that regard. I draw a negative inference from these evidentiary omissions and reject the thrust of his assertion that he had had nothing to do with Mr. Falby in that period.

During his cross-examination, Mr. Augustine volunteered the explanations of the disposition of his perjury charge and previous allegation of fraud against the Board. Those admissions do not assist with the determination of just cause for his dismissal as a result of the instant allegations. However, if I am wrong in my ultimate determination set out below that his discharge was for just cause, his perjury would certainly have relevance to his fitness to be reinstated as an adjudicator with the Board. That is, he perjured himself by telling the court he was an employee of the Board, when he had been dismissed from his employment because he was believed to have conspired with others to defraud the Board. He did so as a surety in support of a bail application for his lawyer/roommate, who was accused of smuggling contraband into a jail. He had the perjury charge withdrawn in exchange for testifying against his lawyer/roommate. All in all, if I had found that his discharge was unjust, I might be persuaded that he is not a candidate for reinstatement as an adjudicator of workers’ injury benefit claims.

From the evidence taken as a whole, Mr. Augustine had a series of unexplained deposits made to his bank account that corresponded in time to the improper benefit payments to Otis Wilson. However, he had no more or less opportunity to authorize those payments than anyone else in the Chemical Sector. That is, he had the opportunity to authorize the payments and there is evidence that he received some of the proceeds. What distinguishes him from all of the others is the statement given by Mr. Falby.

The admissibility of that statement was vigorously challenged by the union. I have carefully considered the union’s arguments against admitting or relying upon that statement. In my view, the statement is admissible. First, the union said that the entire statement had not been taped and, as an incomplete record, it should be rejected. However, in his testimony, Mr. Falby did not seriously disagree with Mr. Gladish’s account of the portion of the statement that was not taped. Accordingly, that omission does not affect the reliability of the audio statement, there being no serious issue as to what transpired. Second, Mr. Falby’s statement was first sought to be introduced without calling him as a witness. When that approach was rejected by the Board, he was called and cross-examined, thereby meeting the earlier concerns about the necessity of admitting the statement without hearing his viva voce evidence. He was examined and cross-examined on the statement, permitting a full consideration of his involvement. Having had the benefit of his tape-recorded statement along with his examination and cross-examination thereon, I am content to admit the statement for the truth of its contents. I reach this conclusion both generally and pursuant to s. 48 (12) of the Labour Relations Act, 1995.

In my view Mr. Falby’s explanation for the unreliability of the statement must be rejected. I am not rejecting his testimony that he suffers from epilepsy. Nor do I necessarily reject his explanation that in a pre-seizure state he would have no recollection of making the utterances caught by the audiotape. There was no medical evidence that would support or oppose that explanation. I do reject his evidence that he was in such a state.

Mr. Falby’s evidence was quite variable as it pertained to his ability to recall the events at the time he was interviewed. In his evidence before me he readily agreed with many propositions put to him as to what had taken place during the interview. He generally agreed with Mr. Gladish’s description of what had gone on in the interview prior to the beginning of taping. He recalled that there was someone else there in addition to Mr. Gladish. He recalled that he was not asked if he wanted to be interviewed or whether he wanted legal or union representation. He recalled being told the background scenario. He recalled being told that they had just finished talking with Otis Wilson and that Mr. Wilson had “given him up.” He categorically said that he was never advised he could get a lawyer or a union representative. He said that he was not told that he could leave if he wanted. His detailed recollection of the events in the interview that might benefit him, juxtaposed with his black-out over those aspects that hurt him leave his evidence regarding the interview as a self-serving account that must be rejected. Having considered the statement as a whole, I find it more likely than not that he gave the statement voluntarily and that he told the truth when he said that he and Mr. Augustine participated in a scheme that resulted in the fraudulent payments to Mr. Wilson.

The union also was concerned that Mr. Falby’s Charter rights and union representation rights had not been protected in the taking of this statement. Assuming, without deciding, that the Charter of Rights and Freedoms applies to an employee in Mr. Falby’s circumstances, I conclude that his rights were not abridged. The protection relied upon by the union was Mr. Falby’s right to counsel found in the Charter at section 10 as follows:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefore;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

The precondition for the applicability of s. 10 is that Mr. Falby had been arrested or detained. Mr. Falby testified that he was never told that he could leave. When asked why he didn’t leave he said that he didn’t know. He also said that he didn’t know why he would leave. He didn’t know what the interview was about, but he knew that he worked in the same building as those questioning him. From his testimony, it is clear that he considered Mr. Gladish to be an employee of the W.S.I.B.. There is no indication that he believed that he had been arrested or detained. Further, although the union did make submissions that Mr. Gladdish had significant statutory investigative powers, and that he was a person in authority akin to a peace officer, the viva voce evidence and the recorded statement do not bear those submissions out.

The union also opposed the admission of the statement on the basis that Mr. Falby had been denied union representation. The provision of the collective agreement dealing with union representation is found at article 13.01 as follows:

13.01 When the Employer meets with an employee to advise of disciplinary action, the employee will be advised of the nature of the meeting and they have the right to Union representation. In the event of an employee’s impending discharge, the Union will be given advance notice of such action.

The union relied on a number of authorities that stand for the well-known proposition that where union representation is a substantive right, a failure by the employer to afford such representation will render any discipline imposed void ab initio.

Assuming, without deciding, that Mr. Falby was entitled to union representation at the interview with Mr. Gladdish, the remedy for such a failure to provide representation would be to strike out any discipline imposed against Mr. Falby. The union seeks to expand the remedial effect to include the expunging of the statement. In my view the authorities do not reach that far. Article 13.01 does not act to strike out Mr. Augustine’s disciplinary discharge in these circumstances, since his right to representation was not abridged.

I also have great doubt that Mr. Gladdish’s interview was an instance of the employer meeting with an employee to advise of disciplinary action. On its face, it was a meeting held as part of the investigation; if I needed to, I would so hold. Clearly Mr. Sgro’s meeting was to advise Mr. Falby of disciplinary action and a union representative was not present. If I was charged with assessing Mr. Falby’s discipline, I would be troubled by the status of the utterances made by Mr. Falby during that meeting since he made a significant admission. However, I am dealing with Mr. Augustine’s grievances and Mr. Falby said nothing further to implicate Mr. Augustine.

The alleged failure to provide Mr. Falby with union representation at his interview with Mr. Gladdish does not render his statements inadmissible as against Mr. Augustine.

I turn now to an assessment of the content of Mr. Falby’s statement, having found it admissible and reliable for the truth of its contents. In this regard, it is sufficient to summarize some excerpts from the statement.

Near the beginning of the statement Mr. Falby concurs that he is making it voluntarily and has been advised that he may be charged with fraud over $5000. He was warned that anything he said might be used against him as evidence and that he was not obliged to answer.

Mr. Falby then said that Jeff Augustine sent him a request to change the payee from Bell Canada to be the worker, Otis Wilson, and that Mr. Augustine then extended the payments. He said that there were three of them involved: himself, Otis Wilson, and Jeff Augustine. He said, “Well we just figured if there was three of us involved right, that you would just split it three ways.” Further into the statement Mr. Falby described splitting the payments. For example he was asked how he made arrangements to receive payments. He said, “he [Jeff] would just call me and we’d just meet like we always meet to do anything.” Although he did not see Mr. Augustine take any money, the scheme is clearly enough described to capture Mr. Augustine’s involvement.

There is no doubt from reviewing the tape and transcript that the interrogation techniques of Mr. Gladdish and his superior, Adrian Moores, were less than stellar. However, on a complete consideration of the statement I find that there is clear and cogent evidence that Mr. Augustine was part of a conspiracy to defraud the W.S.I.B. of approximately $55,000 and was justly dismissed from his job as a Claims Adjudicator.

Decision

The grievance is denied.

Dated at Toronto the 28th day of November 2006