GSB#2008-3057

UNION#2008-0586-0031

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Chabanova)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Robin Gordon Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Labour Practice Group Counsel

HEARING

April 30, August 24; September 24; October 19; November 10, 12, 18, December 1, 2, 3, 2009; January 7, 8; February 11, 12; March 10, 12, 15; April 6, 14, 15; May 18, 25, 26; August 18; September 21; and October 5 and 6, 2010.

Decision

1The Grievor, Irina Chabanova, was discharged from her employment at the Ontario Disability Support Programme (ODSP) primarily for alleged dishonesty. The Employer maintains that the Grievor deliberately approved numerous benefits for 6 clients of ODSP without following the proper procedures and without obtaining the required documentation to support eligibility. It was also alleged that the Grievor contravened the Ministry’s conflict of interest rules by failing to disclose a spousal relationship with her co-worker and as a result of her relationship with the granddaughter of one of her clients. Lastly, it was alleged that she breached the WDHP and I & IT Policy by receiving and forwarding inappropriate material using her workplace computer.

2The Grievor denies ever engaging in deliberate or dishonest conduct. She acknowledges that she might have made the occasional mistake, but insists that she did not knowingly or deliberately abuse her discretion. The Union further denies that the Grievor engaged in any other misconduct that warrants her dismissal.

3In total, this matter required 27 days of arbitration, with 15 witnesses and 92 Exhibits, some of which were multiple documents. The Employer alleged that deliberate misconduct should be inferred from a pattern of omissions and irregularities in 6 of the files managed by the Grievor. There was no direct evidence of misconduct; all of the Employer’s evidence was circumstantial. In light of the nature of the Employer’s case and the Grievor’s response, I have included a lengthy review of the evidence.

Background and General Conditions in ODSP

4ODSP provides income support to persons with disabilities and their families. Recipients receive a basic needs benefit for food, clothing and general expenses of everyday living and can obtain discretionary benefits for specific needs:

a. Mandatory Special Necessities (MSN): for expenses associated with medical or surgical supplies that are not otherwise covered. A medical transportation allowance is also permitted to pay for travel expenses to obtain medical treatment and care.

To obtain the benefit, clients must submit a prescribed form completed by an eligible professional, such as a physician. The allowable amount is determined in accordance with a benefit schedule and can be paid on an ongoing basis, where warranted, commencing on the date that the MSN Form is received by the ODSP office.

b. Special Diet Allowance: A maximum of $250 per month can be paid to assist clients with the cost of a special diet where required for eligible medical conditions. A Schedule lists eligible conditions and the corresponding monthly benefit. An approved health professional must confirm that the recipient has a medical condition for which a special diet allowance is provided. The allowance is paid commencing the date that the application is signed and completed.

c. Employment and Training Start Up Benefit (“E-SUB”): Recipients may receive up to $500 once in a 12-month period for expenses related to employment or an approved employment related activity. Eligible expenses include clothes, tools, personal grooming or assistance with skills needed to search for a job, such as resume writing.

d. Community Start Up and Maintenance Benefit (“C-SUMB”): A maximum benefit of $799 per individual, or $1500 for a family unit, can be approved in a 24 month period to defray special expenses associated with setting up or maintaining a client’s residence. A start up event is generally defined as a permanent move to a new principal residence, however each case must be reviewed on its own merits. Expenses can include moving costs, household goods or arrears of utilities. In exceptional circumstances, the benefit can be approved to permit payment in excess of the maximum in a 24-month period.

e. Low Cost Energy Conservation Measures (LCECM): Recipients may be issued a one-time payment of $50 to assist with energy conservation measures in their home. All recipients who reside in their home are eligible for this benefit, as are those who reside in rental units where it is clear that the landlord is not responsible for providing the items requested.

f. Eligibility of Dependent Children: A child is considered a dependent if s/he is under 18, resides with the applicant and the recipient is responsible for the primary care and control of the child. If the child is of school age, they must provide verification of school attendance or circumstance where attendance is excused.

5The Ministry administers the programme at designated ODSP offices throughout the province. Client files are assigned to each office based on the geographical area in which the client resides. In Toronto there are 4 offices, including one at 385 Yonge Street (“Yonge office”) and another at 1870 Wilson Avenue (“Wilson office”). Staff document file activity, including change in circumstance and requests for additional benefits, in the Service Delivery Model Technology, (STMD), in order to maintain a computer record of all file activity. Documents are kept on file in the corresponding master file, MSN file or CVP file, as appropriate.

6Each office has staff working in a team setting, made up of Income Support Specialists (“ISS”), Customer Service Representatives (“CSR”) and Income Support Clerks (“ISC”). The ISS is responsible for reviewing claims and deciding whether clients are eligible, or continue to be eligible, for benefits. The CSR is primarily responsible for gathering the required documentation, reviewing the information and recommending whether benefits should be granted. The ISC files the documents and offers clerical support.

7Designated MSN CSR’s work specifically on MSN benefits. They typically collect the required documentation, review it for completeness, calculate the eligible amount of the benefit, make a note in the system with their recommendation, place the documentation in a separate MSN file and give it to an ISS for a final decision. MSN folders are kept in a separate location, physically distinct from the rest of the client’s master file.

8Client files are also regularly reviewed as part of a Consolidated Verification Process (“CVP”), designed to ensure compliance with Ministry directives and continued eligibility for benefits. Ideally, CVP’s are done annually, with a minimum review period of 3 years. CVP’s for the Toronto region are performed by dedicated ISS’s in the Yonge office as part of a centralized update unit. In the local office, the ISS’s will also review cases to see if updating is required or to review calculations in an effort to make sure that clients are receiving the correct amount.

9An ISS and CSR are assigned a joint caseload, typically several hundred cases, by alphabetical order of clients’ last name. The ISS and CSR both usually work on every file. The CSR is commonly the point of first contact, although there are circumstances where a client will meet or speak directly with an ISS and only the ISS will be involved. These include situations where the CSR is away from the office, the client file requires emergency action, at month end or for CVP review. In these circumstances, management considers detailed documentation by the ISS of the need to act alone as the best practice.

10Management also regarded the involvement of both the CSR and the ISS as an important element of sound business practice, even where the ISS saw a client directly. In its view, the business process was set up to include some checks and balances in the system to ensure that the CSR is not acting above their level of delegated authority and that the ISS is acting in accordance with accepted policy and practice.

11There are also instances where an ISS might have contact with clients that are not in their regular caseload. At month end, there are a large number of clients that attend the office on a walk in basis and they are referred directly to an ISS. As well, every effort is made to ensure that clients who do not speak English as their first language are able to speak with an ISS in their native tongue. Therefore, staff might be asked to translate or meet with clients directly where they have specific language fluency. Again, management expects an ISS who deals with a client who is not in their regular caseload to document their contact in the system and advise the regular ISS.

Documentation Requirements

12Managers expect that all client requests will be noted in STMD and that clients will provide supporting documents when they request discretionary benefits. Benefits can be approved when requested, however, documentation to support eligibility should follow.

13In certain instances, the issue of documentation is specifically addressed in the relevant Directives:

a. E-SUB: Written verification of employment or approved employment activity is required. Documentation to support eligibility can include confirmation of employment from an Employer, pay stubs or a letter or statutory declaration from the client confirming that they are working or looking for work and require assistance to purchase work related items.

b. Special Diet Allowance: Requires Application for Special Diet Allowance completed and signed by an approved health care professional.

c. MSN: Requires a Mandatory Special Necessities Benefits Request Form completed and signed by an approved health care professional.

d. LCECM: The Directive does not address documentation requirements.

e. C-SUMB: Documentation requirements include estimates for moving costs, a copy of the new lease to support payment of last month’s rent, verification from the gas, phone or utility company where appropriate and verification of arrears. Receipts for actual costs incurred must be provided within a reasonable time.

The Directive further provides that Staff must ensure that there is no duplication of payment for start up items. The benefit can be paid to replace a previously reimbursed item where the need to do so has been clearly identified.

14There was substantial agreement between management and bargaining unit employees with respect to the actual practice in the field. In most cases, documentation for individual benefits is generally required. There are some exceptions, such as the Low Cost Energy Conservation Measures benefit. Even though not required by the Directive, best practice would be to obtain a written request. Managers will also occasionally direct an ISS to issue a benefit. In those circumstances, the ISS would note the direction in STMD.

15With respect to the E-SUB, all of the witnesses, except the Grievor, agreed that documentation must be submitted when an E-SUB is approved. Two witnesses called by the Union, Cyntia Perez, an ISS at the Yonge office, and Cindy Krackman, an ISS at Wilson, testified that they might issue the benefit after receiving a verbal request, with documentation to follow. Ms. Perez also testified that she would follow up a few months later to see if the client is still pursuing work, had completed their courses, or got a job, in which case she would need to enter their earnings in the system. Markella Giannaros, an ISS in the Central Update Unit at Yonge, testified that documentation for an E-SUB should include a written request for the benefit, the reason the client needs benefit, proof of approved employment activity and then proof of how the benefit was used.

16The Grievor testified that there were occasions when a verbal request was sufficient to grant an E-SUB. It was her recollection that during an E-SUB campaign, the benefit could be approved after a phone call from the client requesting the benefit. Ultimately, “it was up to the ISS to make a good decision”. The Grievor further testified that she had discretion to dispense with receipts in approving a C-SUMB. Sometimes, it was enough to simply talk to the client and get their explanation.

17Other witnesses confirmed that ODSP conducted an E-SUB related campaign to advise clients of a benefit to assist them if they wanted to get back in the workforce. Invitation letters were sent to clients most likely to benefit from the workshop, including those recently added to ODSP or who were likely to be able to get a job, given their age and level of disability. Attendance at this seminar was accepted as evidence of job search efforts. Management expected documentation to establish attendance.

File room

18Master Files, MSN files and CVP files were all kept in separate locations. In order to access a file, an ISS or CSR would have to request it and an ISC would pull the file for them. Documents that arrive in the mail are processed by an ISC and put into a cubby by alpha caseload. A CSR then processes and enters the information in the system and passes the documents on to the ISS for final action. The document is subsequently sent for filing after the ISS and the CSR have completed their work.

19Management acknowledged that at times there was a backlog of filing to be completed. For the most part, however, management considered the file rooms to be well organized so that files could generally be located; management denied rampant problems with missing documentation or that it was common for staff to be unable to locate documents. At the Yonge office, in late December 2007, early 2008, staff initiated a clean up project to address a backlog of system-generated letters.

20Sean Seames, formerly a CSR at the Yonge office, testified that the Yonge Street file room was generally in good condition. There was a backlog of documents that needed to be filed, but the files were well organised and easy to find. Ms. Krackman testified that the file room at Yonge did get backlogged on occasion and that she was unable to locate documents “several times”, at least 10 times in her 21-year career. Similarly, Cyntia Perez, stated that she has seen a backlog of MSN documents to be filed at the Wilson office. In her view, the general state of files at Wilson was not the best; sometimes she found documents for clients in the wrong file and sometimes she was unable to find documents.

21The Grievor testified that people were always looking for documents and that missing documents was not unusual. She thought that the file room at Yonge was messy when she first arrived. After the file clean up in late 2007 or early 2008 it appeared more organised. She also testified that the file rooms at Wilson were very disorganized and backlogged.

Grievor’s Work History and Duties

22The Grievor began working for the government in January 1998 in a temporary capacity as an ISC in ODSP. In September 1999 she successfully competed for a permanent ISC position and in 2002 she became a CSR, working initially at the Yonge Street office and then moving to the Wilson office. The Grievor served as an acting ISS at the Wilson office from November 8, 2004 to July 31, 2005 and again effective March 5, 2007. On September 10, 2007, she moved back to the Yonge office as a permanent ISS.

23The Grievor’s caseload at the Yonge office included clients with last names that began with O to Pos. The Grievor was also fluent in several languages: Russian, Ukrainian, Polish, Yugoslavian and English, and was asked to assist in the office when clients required an interpreter. To her knowledge, she was the only person in her office that spoke these languages. She testified that over the years she was called upon on many occasions to translate at the request of other staff.

24Sean Seames was the CSR assigned to work with the Grievor from the time she arrived in September 2007 until late February 2008. According to Mr. Seames, he and the Grievor would frequently discuss cases and he estimated that during the period that they worked together they worked on roughly 250-300 cases in their shared caseload of 600-750 files.

25As a CSR, Mr. Seames testified that he performed front line services, including meeting with clients, gathering the required information and recommending benefits. He would receive all of the mail for the caseload, process it by entering it into STMD and then pass it along to the appropriate person. The ISC would help process mail, cheques, register clients and bring forward issues to him in the event of irregularities. He acknowledged that although he would generally be the point of first contact for a client, when a CVP was done or at month end, the Grievor might meet with a client on her own.

26The Grievor generally agreed that the CSR is the first point of contact, but noted that there are times when clients contacted her directly, as is their right. In her view, direct contact with an ISS happened all of the time, “every client is different some prefer to speak to an ISS only”. The Grievor could not say how many cases she had seen that fell into that category, but insisted that despite the team approach, “some requests go through the CSR, some end up right away on the ISS’s desk. They are still a team but it doesn’t apply to all cases. It varies all the time.”

27Cyntia Perez confirmed that she was often asked to provide assistance to clients who spoke Italian or Spanish and that after providing translation clients would sometimes seek her out on other occasions. When she translated, the ISS who had carriage of the file would sometimes, but not always remain in the room during the client interview. Either ISS might enter the notes in STMD as a follow up to the meeting. If follow up work were required, normally, the ISS who was responsible for the file would do the work although Ms. Perez might also be involved if her services as a translator were required. If the client called her directly, she would service them but advise them that she was not their caseworker.

28Ms. Perez testified that CSR’s are normally the point of first contact, but there are times when they are not available and the ISS will service a client directly. She has also known clients to send documents directly to an ISS. Ms. Krackman, also testified that an ISS has delegated authority to approve a benefit without CSR involvement and that it is a common practice.

Investigation of Irregularities

29In mid December 2007, Joyce Lau, an ISC at the Yonge office, approached Sean Seames regarding an arrears cheque in the amount of $2000 for a Special Diet Allowance, payable to a client on his caseload. Ms. Lau brought the cheque forward because it was for a large amount and she was concerned that there was no documentation. Mr. Seames was unfamiliar with this client, which surprised him. Given the size of the cheque, he expected that there would have been multiple notes in the system by both the Grievor and himself, but he had not seen any mail from this client, not discussed the client with the Grievor nor ever seen the client file.

30Mr. Seames searched for the required Special Diet Allowance Form, but could not find it. The benefit was backdated for a longer period than he had ever seen and, unlike the normal case, there was no information in the system regarding a medical condition, how long the benefit was required, or the doctor’s name.

31Mr. Seames subsequently reviewed the Master File and noticed that there were quite a few benefits that were issued without documentation on file. There was no documentation regarding a LCECM benefit, a C-SUMB, an E-SUB, the client’s move to a new residence or to support adding her granddaughter as a dependent. In his view, as the designated CSR, he would normally have been involved, receiving the supporting documentation and entering it in STMD before passing it to the Grievor for approval. Moreover, he noticed that the MSN CSR was not involved either, even though MSN benefits were granted.

32Mr. Seames was also of the opinion that the documentation in this case was far less than in any other case he and the Grievor worked on together. For example, in granting an E-SUB, there would typically be evidence of where the person was working and why the benefit was necessary. None of that detail was present in this case.

33Mr. Seames approached the acting manager with his concerns. He felt that there were “too many discrepancies” and unlike any other file that he and the Grievor had worked on. The acting manager contacted Sue Pettersone, then Toronto Regional Programme Manager, in early December 2007. Delia Soares, a long-standing manager at ODSP, conducted a file review and concluded that the client received several benefits that were within the amounts permitted under ODSP policies, but were issued without adequate documentation to substantiate the payments. Based on these findings, Ms. Pettersone referred the file for a complete CVP review.

34By February 2008, Ms. Pettersone believed that there were significant concerns with respect to this file. The amount of the benefit was out of line with the norm; the client appeared to follow the Grievor from Wilson to Yonge, she was registered for office pick up; and the client log in for January indicated that the client had not logged in as having attended at the office, but the January statement was recorded as having been picked up at the front desk. Moreover, the signature on the January pick up sheet was different than the signature from the 2 previous months.

35Ms. Pettersone also discovered that immediately before the Grievor moved to the Yonge office, she transferred 5 other clients from Wilson to Yonge. All of these clients were entered for office pick up, received higher than usual benefit rates and were actively managed by the Grievor. When Ramzan Khadim became the Grievor’s acting supervisor in February 2008, Ms. Pettersone advised him that there were a number of irregularities in one of the Grievor’s case files. She asked him to review all 6 files and determine if the appropriate processes were followed with respect to the payment of benefits to these clients.

Individual Client Files

36Mr. Khadim could not find the MSN files for any of the 6 client files that he reviewed. He also identified a number of other irregularities and anomalies in these files, including a general lack of documentation, absence of CSR involvement, large monthly benefits, file transfers without proof of address change and miscellaneous entry errors that resulted in payment of greater amounts than were approved.

Client 1: NP[1]

37NP, the initial client of concern, was on the Grievor’s caseload at the Yonge office. Mr. Khadim and Ms. Pettersone noted the following irregularities in this file:

a. File transfer: The Master File was transferred from Wilson to Yonge on September 7, 2007, per the Grievor’s entry in STMD “as per client’s request, as she’s temporarily staying downtown for personal reasons – office p/u (pick up)”.

There was no supporting documentation on file.

b. Dependent Child: STMD entry by the Grievor on November 6, 2007: Client has legal custody of dependant child VI, client submitted verification in April 2007; document could not be located. Child’s “birth cert, citizenship card/passport, SIN, OHIP card provided. D/C attending St. Paul’s secondary school”. Added to benefit unit effective April 2007. Arrears of $2282 generated.

Mr. Khadim noted that there was no CSR involvement and no documents on file to support VI’s status as a dependent child. There was no follow up to obtain school verification records. Further investigation disclosed VI was listed as a dependent in an Ontario Works client file.

A Forensic IT investigation found evidence of an undeclared conflict of interest regarding the client’s granddaughter. VI travelled with the Grievor’s daughter to Mexico in August 2007; the Grievor paid for both travel vouchers.

c. C-SUMB: STMD entry by the Grievor on September 27, 2007: Client submitted new address and rent information, system updated effective Sept. 07. Rent is $450/mo., arrears of $239.50 generated. Client also needed help to purchase some household items, never received C-SUMB before, $799 approved.

STMD entry by the Grievor on November 30, 2007: Balance of C-SUMB requested to buy some household items for dependent child, $701, ($1500 - $799), approved.

Management noted that a CSR was not involved in this instance and that there was no address change and supporting documentation on file. As part of a review of the file in April 2008, the client submitted rent and address verification for a downtown residence in the Yonge geographic area.

However, it was further determined that she was also paying rent at her former subsidized housing unit in the Wilson office catchment area. Ms. Pettersone regarded this as highly unusual; not only is it expensive to maintain 2 residences, it also constitutes an extra-ordinary circumstance that requires supporting documentation for verification.

Furthermore, although the ODSP policy does not preclude payment of a C-SUMB for a temporary move, it is outside the norm and therefore even more important to have adequate documentation.

Finally, Mr. Khadim noted that NP had also received an earlier C-SUMB on May 19, 2006, as recommended by the Grievor when she was a CSR. The Grievor subsequently granted her a second benefit, within the 24-month eligibility period, without any reference to an exceptional circumstance that would warrant the payment of two C-SUMBs in a two-year period.

d. E-SUB: STMD entry by the Grievor on December 11, 2006: Job search, client “requires help to purchase appropriate clothes in order to attend interviews with various employers.” $500 approved “as per ISS”. Doc. to file.

STMD entry by the Grievor on December 4, 2007: Client participating in job search activity. Requires help “to purchase clothes to go for job interviews, grooming, resume writing etc.” $500 approved.

On review, Mr. Khadim noted that there was no CSR involvement; no supporting documentation in the file; no evidence of follow-up to determine if client was in receipt of earnings or update on the status of her job search. Limited documentation was received during the CVP.

e. MSN travel: STMD entries by the Grievor on –

October 24, 2005: MSN – transportation $152/mo. extended for 1 year per new form received, document to file.

December 22, 2006: As per ISS, MSN transportation extended for 12 months, client submitted new form.

March 19, 2007: Taxi receipts for February 07, total of $1178.23 approved, less $152 previously paid.

June 19, 2007: Received taxi chits for April – May 07, $1211.47 approved.

September 5, 2007: Received taxi receipts for July – August 2007, total of $1207.07 approved.

Mr. Khadim concluded that the benefit payments in 2007 were made without the involvement of a CSR and he could not find supporting documents on file. Moreover, the July/August benefits for $1207 were entered as an ongoing monthly benefit.

f. MSN - Special Diet Allowance: NP had previously submitted the appropriate form and was approved for this benefit. An STMD entry by the Grievor on December 18, 2007, indicated an additional amount was added for the dependent child in the amount of $250. Arrears of $2282 were generated back to April 2007.

Mr. Khadim could not find a Special Diet Form on file. Also, a screen shot of the Programme Eligibility Detail in STMD indicates that the Grievor modified the benefit on December 18, 2007 by way of a manual override to provide a monthly special diet amount of $500, backdated to October 2007. The reason given for the override was “New Policy”, however there was no change in policy at that time.

g. LCECM: STMD entry by the Grievor on February 7, 2006: $50 issued to assist with energy conservation measures.

A further entry by the Grievor on January 9, 2008: $50 approved to help with low-cost energy conservation measure.

Management noted that this benefit was paid twice in contravention of eligibility requirements that limit it to a one time ever payment. There was also no detail to support that eligibility was established, ie. proposed conservation measures and confirmation that client was responsible for the measures in her rental accommodation.

38Ms. Giannaros was asked to conduct a CVP on Client 1’s file in December 2007. An ISC booked an appointment with NP for the CVP. The Grievor subsequently advised the ISC that NP had called her and said that she could not make the appointment. The Grievor asked if the CVP file could be closed instead of rescheduled. The manager confirmed that the appointment had to be rescheduled, that the client could have a professional interpreter and that it was possible to do a home visit if the client was not well enough to attend at the office.

39The Grievor also later approached Ms. Giannaros and asked if she could do the CVP. Ms. Giannaros later told the Grievor that she could not do the CVP; the Grievor did not argue but seemed taken aback. Ms. Giannaros further testified that she has completed roughly 1200 CVP reviews and this was the first time she was approached by another ISS offering to do a CVP for her.

40Ms. Giannaros met with NP and requested documentation to substantiate various benefits. NP subsequently provided rent receipts indicating that she resided at a downtown apartment. She further confirmed that she had moved to the downtown location, as she needed more room for herself and her granddaughter. NP’s bank statements also revealed ongoing automatic monthly deductions in favour of the Toronto Community Housing Corporation, her former landlord in the Wilson catchment area. Ms. Giannaros contacted TCHC who went into NP’s apartment and confirmed that she was still living in the unit.

41Ms. Giannaros thought that the circumstances of NP’s move should have raised questions when first reported: she moved from subsidized housing with rent of $163 per month to a private unit with rent of $750 per month. This move would also require her to surrender her subsidised unit, at a time when there was a 7-10 year waiting list to get into such a unit.

42Ms. Giannaros also inquired about VI, listed as a dependent child. There were no records on file regarding custody, school records indicated VI still attended a school in Mississauga and NP was not receiving child tax benefits. NP told her that her granddaughter, VI, was living with her. She did not have legal custody of the child, but VI’s mother was in the Ukraine and the whereabouts of the father was unknown.

43Ms. Giannaros also asked about NP’s work history. NP told her that she was too sick to work but that she volunteered at her church. When she was asked if she had previously looked for work, she said no, she was 64 years old and had lots of medical appointments. Ms. Giannaros received a letter from NP’s church, dated May 8, 2008, confirming that they had paid NP $70-80 per month, since August 2007.

44As a result of the CVP, NP’s address was changed back to her former address, effective April 2008, her rent was entered accordingly and her file was transferred back to the Wilson office. Also, the dependent child, VI, was removed from the benefit unit because NP did not have legal custody and it did not appear that she was living with the client, NP.

45NP did not give evidence. She was summonsed to attend but her granddaughter advised that she had declined on the basis of her poor health.

46The Grievor testified that she first met this client in 2003 or 2004 at the Wilson office. She was not on her caseload at Wilson but when she was an acting ISS, Bart Henessey, another ISS, asked her to switch files with him. He had been assigned NP’s file but she spoke Russian and had arrived for her interview without an interpreter. The Grievor agreed, did the CVP and gave NP her name and direct phone number. After that, NP contacted her on a few occasions with questions.

47The Grievor was a CSR when NP received an E-SUB in November 2006. When asked if she recalled the client asking for this benefit, she replied that if she created the STMD note “it means that she called or walked in.” The Grievor was aware that NP had numerous health concerns, including a very bad heart condition, however she thought that it was possible that NP could work. In any event, the Grievor felt that she could not tell the client that she could not look for work; if clients want to try to find employment, ODSP encouraged them to do so.

48On cross-examination, the Grievor stated that she received written documentation to support NP’s requests for E-SUB benefits. She said that she received a letter from NP’s church, but she did not recall for which E-SUB. She first identified the letter that was provided during NP’s CVP as the letter she received. When it was pointed out that the letter post-dates the granting of the benefits, she said that she received a very similar letter. While her STMD entry did not refer to receipt of a letter, she testified that she was not obliged to give every little detail. She also thought that it was possible that NP might have submitted the letter after her initial request, which is what a lot of clients do.

49The Grievor also remembered when NP asked to add her granddaughter as a dependent child. NP told her she was the child’s only caregiver; that the parents had divorced several years ago, that the mother was out of the country and the father was not around. The Grievor requested the required documents, but NP said that she had already submitted everything a few months earlier. The Grievor asked her to send them in again and recalls that there was a letter from a lawyer’s office in the Ukraine indicating the mother was there and NP was her daughter’s only caregiver.

50On cross-examination, the Grievor could not recall if she actually saw this letter or if NP simply told her about it. She said that she asked for a copy, although did not put a note to that effect in STMD. Per the Grievor’s request, NP also sent in school attendance records, SIN, health card, passport and she thinks a letter from a landlord. She personally saw the documents, photocopied them and placed them in a folder to go to file. The granddaughter did not come in when she was in the office. When she added VI as a dependent child the system did not prompt her or otherwise indicate that she was in receipt of other benefits. She did not check to verify, but the system would not permit her to add her to an ODSP client benefit unit if VI was already listed on Ontario Works.

51The Grievor also remembered approving an arrears cheque in the amount of $2000 for Special Diet Allowance for the period April 1 – November 30, 2007; she believes it was for NP’s granddaughter. Although normally the allowance starts on the date the form is received, in some cases it can be backdated and arrears paid if, for example, the original form gets lost or misplaced. The Grievor believes that this is what happened in this case. When asked how VI could get a form in April if she was not an ODSP client at that time, the Grievor said that she believed that she was added in April 2007 so she was a client then. When she was reminded that VI was added in November 2007 but effective April, she suggested there were other “exceptions”. The Grievor denied that she entered an “over ride” for $500 in connection with this benefit, she believed that the system did that on its own.

52The Grievor did not tell NP that she was going to the Yonge office to work, however, she recalled that NP asked for her file to be transferred to the Yonge office. NP’s former residence was a bachelor apartment and she was moving into a larger apartment to accommodate her and her granddaughter. When the Grievor arrived at the Yonge office, NP was assigned to her caseload in accordance with the alpha order. NP subsequently submitted her new rent information and requested a C-SUMB. The Grievor determined that NP was eligible for the benefit: she had not received one previously and she needed to purchase some household items for the dependent child.

53On cross-examination the Grievor testified that she believes that she obtained the required documentation but cannot recall the exact details. She further explained that although the Directive says that actual receipts should follow, that does not necessarily apply in every case and is not the common practice.

54With respect to the MSN travel benefits that NP received, the Grievor was a CSR in 2006 when she made the first note, she discussed it with the ISS and per the ISS extended the benefit. The next entry, on March 2007, was made when she was an acting ISS. The Grievor testified that she would have received a new form “because the client’s circumstances changed”. She believed that she received the MSN documents in this case instead of the MSN CSR because of the language barrier. The only explanation that the Grievor could offer to explain why the August 2007 entry for $1207 was inputted as a monthly benefit was that it was “probably an error”. Most likely the error was in inputting the end date, but that was speculation on her part, as she can only guess it was an error.

55The Grievor also recalled receiving a phone call from NP asking her when she should come in for her CVP appointment. The Grievor explained that it was a special appointment with another worker to review her file. The client was very upset and asked if the Grievor could do the review. NP said that the friend who usually interprets for her was out of the country and she would be more comfortable if the Grievor could do her review. The Grievor told NP that she would check. She then raised it with the ISS, who told her that she could not. The Grievor did not argue the issue, she simply phoned NP and advised her that another worker would be doing the CVP.

56The Grievor testified that she does not know NP or her granddaughter personally. Nor did she know that her daughter had taken a trip with NP’s granddaughter until Dale Beare told her that during her interview with him. The Grievor said that her daughter asked for a favour, she asked her to put her own trip and her friend’s trip on the Grievor’s credit card “so they are together on the plane and the hotel”. She saw the friend’s name and age, but it did not register with her. The Grievor further testified that VI, NP’s granddaughter’s name, is very common in Russian.

57On cross-examination, the Grievor was asked about e-mail that she sent to her daughter while she was on vacation in which she said “say hi to Lera”. The Grievor said Lera was one of her daughter’s friends; she did not know her full name. Her daughter had told her that her roommate was Lera and that is the only reason she asked about her.

Client 2: EA

58Management noted that EA, was not on the Grievor’s caseload but she had significant involvement on her file. There were a number of serious irregularities:

a. File transfer: STMD entry by the Grievor on September 27, 2007: Transfer Master File from Wilson to Yonge office. The note documents a phone call from the client to advise “she moved in with her 87 y.o. mother, downtown area, will drop off address info in writing. Requested office p/u. System updated”. The alternate address listed in the client records was 2nd floor – 385 Yonge Street.

b. C-SUMB: February 8, 2008: “Client moved 3 months ago, was unable to submit C-SUMB request due to health problems. Requesting it now. Client needs some household items.” Maximum of $799 approved.

Mr. Khadim noted that there was no supporting documentation regarding the move, no address given, and no verification of the current or new address. Nor was there CSR involvement.

Ms. Pettersone also found it unusual that a benefit that is designed to assist with expenses related to relocation was requested 4-6 months after the move.

c. E-SUB: Mr. Khadim testified that the Grievor approved the benefit on December 11, 2007; he could not find any supporting documentation on file.

d. MSN travel: STMD entry by the Grievor on October 4, 2007: Client submitted copies of metro pass for May – Sept. 2007. Confirmed with doctor that client had to go to 20-23 medical appointments per month in period. Reimbursement of $498.75 approved at $99.75 per month.

On review, Mr. Khadim noted that this benefit was paid at $199.75 per month. There was no copy of the MSN form on file and no involvement of a CSR or MSN clerk.

e. Old Age Security/Guaranteed Income Supplement: June 2, 2006: Entry by JFernande indicates that the client provided a letter confirming that she will qualify for OAS/GIS April 2007.

April 26, 2007: TGiannnone phoned client to see if she was receiving OAS; there was no answer and no voice mail to leave a message. ODSP put on suspend.

April 30, 2007: Entry by Grievor that client had applied but was not receiving OAS; assignment signed.

September 27, 2007: Entry by Grievor that client says there’s a discrepancy that has affected her eligibility for OAS, she has applied but is not receiving it yet. “Assignment on file”.

Mr. Khadim called HRDC and confirmed that EA was in receipt of OAS commencing April 2007 and that their department did not receive a signed assignment. No copy of the assignment was on file at ODSP and EA received full benefits, without deduction of her federal support. The client was suspended from ODSP due to receipt of other income and assessed an overpayment of $15,954.52. A further overpayment of $90 was incurred for an error in rent adjustment.

f. LCECM: STMD entry by the Grievor on November 6, 2006: $50 paid to help client with conservation measures per client’s request.

Mr. Khadim could not find documentation on file, there was no indication the conservation measures were not covered elsewhere even though the client resided in a seniors facility that would typically be responsible for maintenance of the unit.

59EA speaks Russian and testified with the aid of an interpreter. She explained that she usually attended at the ODSP office with a friend who would interpret for her or with a professional interpreter. She also recalled meeting with a woman at ODSP who spoke Russian, but she thought that she only met with her 3 or 4 times.

60With respect to receipt of specific benefits, EA said that her memory was not very good and she had difficulty remembering specific dates and details. She confirmed that she has lived in a senior’s residence for the past 12 years, but moved in with her friend for a short period in 2007 when her residence was painted. She thinks she advised the ODSP office that she was moving in with her friend, but did not tell them that she was moving in with her mother, who had died 20 years ago. Her friend also called the office to get some money for her renovations. EA further testified that she had looked for work “to keep busy”, but stopped after she started school in January 2007.

61The Grievor testified that this client was not on her caseload at Yonge and she did not specifically remember her. Her usual practice when she received an assignment of OAS benefits was to fax a copy to HRDC, mail them the signed original and send a copy to the client’s master file.

62In this case, if HRDC could not find the assignment, it must have been lost or misfiled. The Grievor also explained that in EA’s case, when she entered that the client was not receiving OAS benefits yet, she ensured that the file would be flagged in July 2007 and benefits put on hold unless the required information had been received. The Grievor did not know why EA continued to receive benefits after July 2007, but thought that the client probably contacted the office and advised them that she was still not in receipt of OAS yet.

63Similarly, the Grievor did not know why the entry on October 4, 2007 was for a metropass at $99.75 per month but was paid out as $199.75 a month. The Grievor assumed that this was a mistake. She noted that she has seen mistakes over the years caused by computer glitches. On cross-examination she could not provide names of other staff who experienced glitches or give specific examples of where she had previously encountered system problems.

64The Grievor also thought that EA contacted her by phone on September 27, 2007 to transfer her file. She could not explain why EA called her or how she got her number, but in most cases clients contact her because of a language barrier. With respect to the basis on which she approved a C-SUMB, the Grievor testified that she was told to think outside the box in PACE training. In this particular case she exercised her discretion in accordance with her duties. She is expected to use good judgement and that is what she believes she did.

65When asked for specific criteria in the Directive that established eligibility for a C-SUMB, the Grievor first mentioned that it was to facilitate a move due to health and welfare, due to death or incapacity of care giving family member since EA moved to care for her sick mother. After further questioning, she said this was just an example that was close but not the exact criteria that she applied. She then said that the benefit was to facilitate the health or welfare of the recipient. When asked to explain how it was harmful to EA to stay in her former residence, the Grievor replied that she determined that the client needed to move and she was thinking outside the box in considering her particular circumstances. “Every case is different. This doesn’t apply to her situation. It wasn’t harmful to her health to remain in her current residence. But taking into account her specific situation eligibility was determined.”

66On cross-examination she was asked why her STMD note did not mention that EA’s mother was ill or that EA was caring for her mother. The Grievor acknowledged that she assumed that this was the reason that she moved. She also said that she based her decision on the information that she received from the client and that she received the necessary documents. She did not have to change the address in the system because it was only a temporary move. She was adamant that if she documented the benefit in STMD, she must have received the information in writing.

Client 3: VB

67VB was not on the Grievor’s caseload, but management noted that she took the following action in this file as documented in STMD:

a. File transfer: Transfer of Master File from Wilson to Yonge office, entry in STMD on September 7, 2007 “client requested 385 Yonge office p/u, as he’s staying downtown temporarily to take care of his elderly father”.

Mr. Khadim found no verification of lease or letter from landlord on file.

There was also a subsequent notation on November 29, 2007 by a file room clerk that the MSN file was physically received at Yonge from Wilson and would be put with the master file. When Mr. Khadim reviewed the client file in March 2008 he could not locate the MSN file.

b. C-SUMB: November 19, 2007: Client requested benefit to pay for movers and purchase household items. $799 approved. New rent amount input effective September 2007. Arrears of $488.22 generated.

Mr. Khadim found no verification of lease on file, no CSR involvement and C-SUMB paid for temporary move without documentation to establish it was warranted as an exceptional circumstance.

c. E-SUB: November 15, 2006, client participating in job search and requires help to purchase appropriate clothes to attend interviews. “As per ISS”, E-SUB of $500 approved, doc. to file.

December 4, 2007: client participating in job search activity. Requires help to purchase clothes for job interviews, grooming, resume writing, etc. $500 approved.

No documents found in file when Mr. Khadim reviewed it in March 2008.

MSN travel and Special Diet: May 3, 2007: Client submitted new MSN form, eligible for Metropass effective April 2007, arrears of $99.75 to be mailed.

May 15, 2007: Client submitted taxi receipts for Feb., March and April 2007. $1027.45 approved for payment, ($1127.20 – 99.75 already issued).

January 21, 2008: The Grievor modified the system details to indicate an end date for the Special Diet Allowance of December 31, 2099. The client would have turned 65 in December 2007.

Mr. Khadim could not locate the MSN file and noted a number of irregularities: An MSN form was submitted May 3, 2007 that supported payment for a metropass. Notwithstanding eligibility for travel by public transportation, two weeks later, a new note documents taxi receipts for February – April. The MSN travel benefit of $1127.20 was entered as an ongoing, monthly benefit, effective May 2007. The end date for both the MSN travel and Special Diet Allowance was entered as December 31, 2099, contrary to existing policy. Lastly, there was no record of involvement of CSR or MSN clerk.

d. LCECM: February 14, 2006: $50 issued to “assist clt with low cost energy conservation measures”.

There was no indication that the client was responsible for costs.

68This client did not testify.

69Mr. Khadim testified that in his review of the client’s file he also found a number of other irregularities: the client had been paid the maximum allowable Special Diet Allowance of $250 without the required medical form on file; he was paid arrears for rent increases without verification of the rent increase; and over $1000 in arrears for cable charges, with no verification on file. He was also struck by a number of similarities with the other cases that he had reviewed: the language used in the STMD notes was similar, there was no supporting documentation for the approval of the benefits and the file was transferred on the Grievor’s last day in the Wilson office.

70The Grievor testified that she did not recall this particular case or recognize the client name. She said that she translated on a number of occasions and perhaps that was the case with this client. She did not recall who the ISS was that approved the E-SUB in November 2006. She approved the same benefit the following year when she was an ISS, but she did not recall any of the details. Nonetheless, she believes that he requested the benefit and was entitled to it.

71With respect to entering 2099 as the benefit end date, the Grievor testified that this was the former practice and that she was later told to use the month that the client turns 65. The Grievor believes that in most cases she used the client’s 65th birthday after she was directed to do so, but she might have occasionally used 2099. In her view, it did not really matter because the system would automatically terminate benefits on the client’s 65th birthday.

Client 4: IG

72IG was not on the Grievor’s caseload but management found that the Grievor made a number of entries without the intervention of a CSR and in the absence of supporting documentation on file:

a. File transfer: Transfer of Master File from Wilson to Yonge office, entry in STMD on September 6, 2007 “clt currently staying downtown to go for numerous medical appts and tests. Wishes the file to tepm (sic) transferred to 385 - office p/u (pick up)”.

Mr. Khadim checked the master file and could not find a lease, landlord verification or any documents that pertain to change of address.

b. C-SUMB: Grievor entry on May 4, 2005: Client moving due to medical condition. Client needs help with moving costs and last month rent. C-SUMB approved for $799.

Grievor entry on May 18, 2006: Client moving at the end of the month as his landlord, and distant relative, is moving and he wishes to move with him. Client has severe heart condition, has had a few surgeries and has severe diabetes. Needs help with moving costs and to buy some household items as he’s been using his landlord’s items. Client received C-SUMB May 4, 2005, but due to exceptional circumstances, benefit of $799 recommended. Sent to ISS for approval.

May 18, 2006: Approved per PCOREY.

Grievor entry on October 31, 2007: Client submitted new address/rent info. Cheque released for pick-up at office.

Grievor entry on November 7, 2007: new address effective November 2007. Client requested C-SUMB to help with moving expenses and purchase of household items. $799 approved.

The master file did not contain supporting documentation.

c. E-SUB: Grievor entry on December 14, 2006: “Clt participating in employment related activity – job search, requires help to purchase appropriate clothes to attend interviews with various employers. Request rec’d.” “As per ISS”, $500 approved. Doc. to file.

Grievor entry on December 14, 2007: “Clt participating in job search activity. Requires help to purchase clothes to go for job interviews, grooming, resume writing, etc.” $500 approved.

The master file did not contain supporting documentation.

d. MSN travel: Grievor entry on July 22, 2005: MSN form received, client entitled to $502.75 month, benefit extended for one year, document to file.

Mr. Khadim could not find the MSN file or supporting document.

e. MSN special diet: Grievor entry on January 31, 2006: Client requires $250/m for medical condition. Doc. to file.

Mr. Khadim could not find MSN file or document.

f. MSN medical supplies: Benefits Detail record indicates that the Grievor created an ongoing benefit of $148 per month for incontinent supplies, effective November 1, 2007.

Mr. Khadim could not find the MSN form that would authorize payment of this benefit. Benefits of $199.47 per month were also paid for diabetic supplies for February – April, 2008 and there were no MSN forms or notes in STMD to support the benefit payment. Mr. Khadim confirmed that the Grievor entered the benefit.

g. LCECM: Grievor entry on January 31, 2006: $50 paid to assist “with energy conservation measures”.

Mr. Khadim found nothing in writing on file.

73Ms. Giannaros did a CVP review of the benefits received by this client and noticed a number of similarities with the other file she reviewed, client 1: NP: they both moved to Yonge from Wilson; both were on office pick up; IG’s travel benefits were very high; and there were no CSR’s or MSN clerks involved in the process. The outcome of CVP was a reduction in the Special Diet Allowance and MSN travel benefit. The client was also taken off office pick-up.

74IG testified with the aid of an interpreter and confirmed that he had moved frequently in the previous several years. When he moved in 2007, either he or his son phoned the ODSP office to notify them of his move to a new apartment on Queen Street. He said that he was currently on medication and that his memory was very poor, however, he believes that he sent in information from his landlord confirming the address and rent. IG could not recall many details regarding benefits that he had requested or received, including whether he received a C-SUMB in 2007 or an E-SUB in 2006 and 2007.

75IG confirmed that he worked when he initially arrived in Canada, but stopped work after he had a heart attack in 1995. He testified that he looked for work for some time, including in 2006, but he was in a bad car accident in March 2007 and has not looked for work since then. He recalled that his doctor signed forms for him to receive medical travel benefits, diabetes supplies and a special diet allowance. He had numerous medical appointments and would typically take a taxi, which was reimbursed by ODSP. He was not asked to submit his taxi receipts.

76The Grievor testified that her manager, Sheila Judson, initially asked her to deal with this client sometime in 2002 or 2003. After meeting him, the Grievor gave him her contact information, including her direct phone number. She was also approached by an ISS to do the CVP for this client. The Grievor recalled the client calling to request that his file be transferred downtown and that he had a history of frequent moves for various reasons including health, cheaper rent or because he was required to vacate by the landlord.

77On cross-examination, the Grievor was asked about approving an E-SUB for this client in December 2007. She testified that she doesn’t remember precisely, but believes that she must have received something in writing, either a note from the client requesting the benefit or something else. She could not explain why the client testified that he did not look for work in 2007 after his car accident. She was certain, however, that he requested the benefit.

Client 5: LK

78LK was not on the Grievor’s caseload. Management noted that she nonetheless made the following entries in STMD:

a. File transfer: Transfer of Master File from Wilson to Yonge office, entry in STMD on September 7, 2007 “as per client’s request, as she’s temporarily staying downtown for personal reasons – office p/u (pick up)”. The client listed the same mailing address as Client 6.

Mr. Khadim found no documentation on file to verify the move.

b. E-SUB: December 18, 2006 “Clt participating in employment related activity – job search, requires help to purchase appropriate clothes in order to attend interviews with various employers. Request rec’d”. “as per ISS” $500 approved.

December 6, 2007: “Clt participating in job search activity, requires help to purchase clothes for job interviews, grooming, etc.” $500 approved.

Mr. Khadim found no documentation on file to support the benefit and no follow up to see if the client had found a job or was in receipt of income.

c. MSN: October 16, 2006: P Corey notes that MSN travel form received, client eligible for metro pass, approved effective September, 2006.

April 17, 2007: Client submitted taxi receipts for March 2007 totalling $1210.05 for travel to medical appointments. Receipts reviewed and payment of amount less $199 already issued.

June 28, 2007: Client provided taxi receipts for April – May 2007 for medical treatment. Total for 2 months is $1287.14. Payment requested. Note: unable to locate MSN folder. Info. Sent to m/f.

September 5, 2007, received taxi receipts for July – August medical appointments for a total of $1214.17, approved.

Mr. Khadim could not locate the MSN file and the master file did not contain any receipts or MSN form. There was a STMD entry in late October that authorized payment of metropass. Before authorizing reimbursement for taxi charges, changes to the approved transportation requirements would have to be authorized in a new MSN form signed by the doctor.

$1214.17, which was approved based on taxi receipts for July and August, was paid out as a monthly benefit in August, October and requested in November 2007. Moreover, $199.50 was also paid for MSN travel up to September 2007. In October 2007, the client began to receive the identical amount for surgical supplies.

d. LCECM: April 27, 2006: $50 issued to “assist client with low cost energy conservation measures”.

No documentation on file, no written request or confirmation that client responsible for costs.

79LK testified, with the assistance of an interpreter, that she received ODSP for approximately 10 years until February 2009, when she turned 65. She confirmed that in 2007 she asked for her file to be transferred downtown from the Wilson office. She had a number of medical appointments in the area so it was convenient for her to pick up her cheque there. Her doctor also wanted her to get out more and she could use the opportunity to meet her daughter, who worked downtown. She did not call herself to ask for the transfer but had one of her English speaking friends or her daughter call for her.

80LK was unable to recall many of the details related to her receipt of benefits. She explained that she was on medication and that her memory was poor. She did not specifically recall receiving any employment related benefits. LK has not looked for work in over 10 years; she testified that she has a number of serious health conditions and she did not work, look for work or attend seminars about job related issues. She could not recall whether she received an E-SUB benefit in 2006 or 2007, although she said that she would always accept money to buy clothes. Nor did she remember other benefits such as the LCECM. She further testified that she did not discuss ODSP benefits with her friend, client 6: LR. These matters were private and related to her personal, medical needs.

81The Grievor did not recall this client and said she was not in her alpha assignment at Wilson or Yonge. However, she thought that she might be one of the many clients for whom she provided translation. With respect to the benefits that she allowed, LK had previously been approved for a metropass, so, she should have received a new or amended MSN form in order to reimburse the client for her taxi fares in April 2007. She also noted, that per her STMD entry, she could not locate the MSN folder when she tried to file subsequent receipts in June 2007.

82On cross-examination, the Grievor could not explain why there were recurring payments for $1217.17 after August 2007, why there was an additional $199.50 paid for MSN travel, why when that benefit stopped in October, the client began to receive the exact same amount for MSN surgical supplies or why October 31, 2099 was used as the end date for that benefit. She speculated that there might have been entry errors, but she could not be certain.

Client 6: LR

83LR was never on the Grievor’s caseload. Management observed that the Grievor took significant action on the file with no input by other staff and that there were many similarities with the previous files:

a. File transfer: Transfer of Master File from Wilson to Yonge office, entry in STMD on September 7, 2007 “as per client’s request, as she’s temporarily staying downtown for personal reasons – office p/u (pick up)”.

There was nothing in the master file regarding a new address: no written request, no lease or letter from landlord.

b. C-SUMB: March 23, 2006: Client moving and needs help with moving costs and household items as did not have furniture, etc before. C-SUMB of $799 recommended and forwarded to ISS for review/approval. March 23, 2006, benefit approved by PCOREY.

Mr. Khadim, concludes that this entry demonstrated that the Grievor was aware of the proper protocol, which she followed here, where the CSR recommends and the ISS approves the benefit.

c. E-SUB: December 18, 2006: “Clt participating in employment related activity – job search, requires help to purchase appropriate clothes in order to attend interviews with various employers. Request rec’d”. “as per ISS” $500 approved.

December 6, 2007: “Clt participating in job search activity, requires help to purchase clothes for job interviews, grooming, etc.” $500 approved.

No documentation was found in the file.

d. MSN travel: June 1, 2007. Client submitted taxi receipts for March, April and May for a total of $1217.90, benefit approved.

August 1, 2007: Received taxi receipts for July – August, totalling 1201.57 approved for reimbursement.

Mr. Khadim could not find the MSN file or MSN form and noted that there was no CSR involvement. Also, $1201.57 was entered as an ongoing benefit, received every month, even though it was based on taxi receipts accumulated over a 2-month period. The client also received $199.50 for MSN travel in June and August 2007 in addition to a monthly amount for taxis. When a CVP was subsequently performed, a new MSN form was requested and, based on the doctor’s entries, the client did not qualify for a travel benefit.

e. LCECM: April 27, 2006: $50 issued to “assist client with low cost energy conservation measures”.

Mr. Khadim could not find a written request for the benefit or verification from the landlord that the client was responsible for the expense. The Grievor was also a CSR at the time and did not have the delegated authority to approve this benefit.

84The client testified with the assistance of an interpreter and advised that she had lived at the same address since 2006. She confirmed that she asked for her file to be transferred to the Yonge office after her doctor recommended that she take short walks, see people and socialize. Her English is limited so she asked a friend who is Russian speaking and on ODSP to call the office on her behalf to request the file transfer.

85With respect to receipt of an E-SUB, the client could not recall if she received the benefit but thought that clients could get extra money to purchase clothes. She worked after she first arrived in Canada in 1994, but did not work in 2006 and 2007 and did not go on any job interviews. She denied telling anyone at ODSP that she was looking for work in 2007. On cross examination, she agreed that if she heard that you could get an extra $500 to look for work she would probably ask for the benefit.

86LR also recalled that her doctor filled in a form regarding her need to attend medical appointments, obtain medical supplies and eat a special diet. She further recalled sending these forms in along with her taxi receipts and receiving the corresponding benefit.

87The Grievor did not recall this client, however, remembered receiving a C-SUMB request from her in March 2006 when she was a CSR. The client was moving to subsidized housing and asked for a CSUMB: the Grievor reviewed the documents and recommended that the benefit be approved. LR was on Paul Corey’s caseload at the time and he approved the benefit.

88On cross-examination the Grievor could not explain why the client received monthly payments rather than a single benefit of $1201.57 for MSN travel or why she also received a further payment of $199.50 for MSN travel.

Client Outcomes

89Management discussed the appropriate response to the ongoing benefits in the client files at issue and, in particular, whether an overpayment should be assessed for individual clients. Ms. Pettersone stated that in many of these cases it was difficult to determine whether the benefit was paid because the client mislead the programme or it was the result of staff conduct. As of the end of 2008, the client benefits were reassessed as follows:

a. Client 1: NP: Benefits were regularly issued for $1141.50 per month prior to May 2007, they steadily increased thereafter, peaking at $6,872.07 in November 2007, $5,942.07 in December, $4,892.26 in January 2008 and $3442.07 in February and March 2008. After the CVP was completed in May 2008, the benefit level dropped from $2326.07, received in March and April, to $868.00.

b. Clients 2: EA, and 3: VB, were determined to be ineligible for any benefits. EA was also assessed an overpayment of roughly $16,000.

c. Client 4:IG: MSN travel and Special Diet Allowance.

d. Clients 5: LK, and 6: LR, were both subject to a decrease in benefits of approximately $1200 per month.

90Ms. Pettersone considered these results to be in stark contrast to the ODSP statistics for the Toronto Region in 2008 that indicate that after completion of a CVP, changes to benefits are made in 17% of cases: 2% have benefits terminated; 8% are assessed an overpayment; and 4% are paid arrears. Moreover, she calculated that clients received in excess of $100,000 in benefits to which they were not entitled.

Random File Review

91Mr. Khadim also randomly selected an additional 11 files on the Grievor’s caseload to review. He only looked at benefits that could result in a large sum being paid, such as MSN and C-SUMB, and did not review compliance issues for E-SUB or LCECM. He found that the MSN and C-SUMB protocol was followed in all cases: the appropriate forms were present in the file; the CSR had been involved in the case and had recommended that the benefit be approved; there were no other abnormalities or documentation issues. Based on his review, he concluded that the Grievor was aware of the proper procedures and business processes to be followed in approving benefits.

92Ms. Pettersone performed a similar random review on the Grievor’s former caseload at Wilson. Like Mr. Khadim, she did not review payment of E-SUB or LCECM benefits. In her view, these benefits are requested less often and involve lower sums. In contrast, MSN benefits have no cap and therefore the potential for very large payouts.

93Ms. Pettersone did not find any irregularities: the benefit amounts were correct; the standard business protocol was followed, including CSR or MSN clerk involvement; and documentation was on file to support benefit entitlement. In light of the random file reviews, Ms. Pettersone concluded that the Grievor had demonstrated knowledge of the applicable business process. She thought that the anomalies in the 6 files at issue were unlikely to be mere coincidence. Based on the similarities in these files and the absence of similar issues in the other files that were reviewed, Ms. Pettersone was of the opinion that the irregularities were as a result of the Grievor’s deliberate conduct.

94The Grievor adamantly denied deliberately approving benefits that clients were not entitled to receive or deliberately approving benefits without the proper documentation. She testified that she regarded her role as an ISS as first talking to the client, assessing their situation, using common sense and making a judgement call. She used her discretion and made a decision to approve or deny benefits.

95The Grievor testified that she did not prevent any of these clients from seeing other ODSP staff. She acknowledged that she might have made mistakes in some cases, however she always tried to do her best but nobody is perfect, “mistakes are made sometimes.” Her decisions were always driven by her intention to maintain the integrity of the programme.

96On cross-examination, she was asked what specific mistakes she believes she made. The only example that she could specifically recall was the error in the first client file (NP) where an MSN payment was entered as a monthly benefit when it actually represented payment for a 2-month period. She further asserted that every ISS might do things somewhat differently, but they are permitted to use their discretion to make a decision. So, from someone else’s perspective it might be a mistake because they would do it differently. She always tried to do her job to the best of her abilities.

Conflict of Interest Allegation

97The Grievor has lived with Paul Corey, an ISS at the Wilson office, since 2003. According to the Grievor, their relationship was common knowledge in the office, managers included. She further testified that they were never assigned to the same caseload, but that over the years they took action on the same files “maybe 2 times, at manager’s requests”. There was no supervisory relationship between the Grievor and Mr. Corey and it never occurred to her in all the years that she was at the Wilson office that their relationship might give rise to a conflict of interest. Nor did management ever approach her in this regard.

98During the course of investigating the Grievor’s files, management became aware that the Grievor had recommended approval of benefits for clients 4 and 6 when she was a CSR at the Wilson office and that Paul Corey, her common law spouse and an ISS at the same office, had approved the benefit on her recommendation. These concerns were brought to the Grievor’s attention during the investigation process.

99After being advised of management’s concerns, the Grievor faxed a letter to the Deputy Minister’s office in which she states that she and Paul Corey are living together and have worked in the same office. She concludes by saying that she has been advised to make a declaration, as “there might be a perceived conflict of interest”. A few days later she received a response by phone. The lawyer who contacted her first said that she was not sure what the issue was, the Grievor explained the situation and the lawyer said that was fine.

100On cross-examination the Grievor acknowledged that she did not mention that Paul Corey had approved benefits that she had recommended. She did not believe she needed to include that level of detail. She acknowledged that she did not raise the specific issue that had been raised with her, but she did not regard it as a conflict of interest.

Independent Investigation by Forensic Investigation Team

101Sue Pettersone told Ms. Renwick, then Director for Toronto for the Ministry of Children and Youth Services and Community and Social Services, that there were a number of irregularities in some of the Grievor’s case files. The allegations were very serious and had the potential for significant impact on the Ministry and individual clients. Consequently, Ms. Renwick decided to call the internal audit branch to conduct an independent investigation. The Grievor was suspended with pay, pending the outcome of the investigation.

102Dale Beare, now retired, but then an OPS corporate investigator with the forensic investigation team, (“FIT”) was the lead investigator assigned to substantiate whether or not the Grievor had breached the Ministry’s Standards of Conduct involving ODSP clients; and whether her actions violated any policies or protocols. He reviewed the Master Files for the 6 ODSP clients at issue, the corresponding STMD details and the Grievor’s human resources file.

103Mr. Beare also interviewed the Grievor, Mr. Khadim, and all of the clients except client 3: IG, who did not respond to his request. Clients were invited to an interview at the Yonge office to “update their case” and were advised that they could bring an interpreter if they wished or that the Ministry would provide one if they did not. All of the interviews were recorded and transcribed. None of the interviews were conducted with the assistance of an interpreter.

104After completing his investigation, Mr. Beare prepared a report and made the following findings:

a. The Grievor approved or recommended payments of ODSP benefits to certain clients and/or made client related entries on the SDMT system that lack adequate verification or supporting documents and/or do not appear to be consistent with the intent of ODSP directives which has resulted in significant overpayments to clients, including the following examples:

i. A dependent child was added to a client’s benefit unit, including an arrears cheque and addition of the Special Diet Allowance for the dependent child without adequate verification that the client had legal custody of the child or a completed Special Diet form by an approved health professional is not on file;

ii. ODSP benefits were extended for over a year to a client receiving Old Age Security/Guaranteed Income Supplement with no Assignment document on file This resulted in an overpayment of almost $16,000;

iii. Case files were transferred to other ODSP offices and clients were issued C-SUMB benefits where clients did not change addresses or request a file transfer, moved temporarily, maintained two residences and/or received additional C-SUMB benefits within the 24 month qualifying period with no address change records or supporting documentation on file;

iv. E-SUB payments were issued to clients who state that they did not apply for this benefit and there is no verification on file to support the employment activity;

v. MSN medical travel, diabetic and surgical supplies benefits were issued to clients and/or extended without completed or updated MSN forms by an approved health professional, on file;

vi. Special Diet Allowance was granted and/or extended to clients without completed or updated Special Diet Application forms on file;

vii. Clients received but some do not recall requesting the one-time Low-Cost Energy-Conservation benefit and one client requested and was granted this benefit on two occasions.

b. Client 1 is the only client that is on the Grievor’s caseload and the Grievor had considerable contact with the other cases with limited CSR involvement. This could be attributed to the Grievor being proficient in several languages and clients were referred to her to assist them in communicating in the client’s preferred language. However, in most cases, the Grievor did not inform or make Notes on SDMT informing the appropriate ISS as to the nature of the contact with their respective client, as is the business practice.

c. Client master file documents, MSN files/documentation and Special Diet Application forms are missing and could not be located during the investigation. In addition, old Special Diet Application forms for client 5 and 6 completed in 2004 were located at the Grievor’s desk and were not filed as expected.

d. The subject clients received all benefits and/or verified cheque endorsements.

e. There is no evidence that the Grievor received any financial or personal gain, directly or indirectly as a result of requesting or approving any benefits.

f. The Grievor and another employee worked in the same office and while management acknowledged they were aware of their personal relationship, a formal conflict of interest declaration was not made or requested. These two employees were in a possible conflict of interest situation regarding the recommendation and approval of benefits on two separate occasions involving clients 4 and 6.

g. The Grievor was in a conflict situation when she purchased a travel voucher in August 2007 on behalf of a client’s granddaughter, who vacationed with the Grievor’s daughter.

h. A forensic investigation of the Grievor’s IT activity revealed that she sent and received e-mails with potentially inappropriate content, ranging from jokes to nudity.

105Based on these findings he reached the following conclusions:

a. The Grievor did not consistently manage certain client caseloads or apply the ODSP directives and procedures in accordance with the requirements of her position as an ISS;

b. The Grievor was in a conflict of interest situation when she purchased a travel voucher for a client’s dependent child (Client 1);

c. The Grievor did not formally declare a potential conflict of interest regarding her personal relationship with a co-worker, which created a possible conflict of interest regarding the recommendation and approval of benefits for two clients (clients 2 and 4);

d. The Grievor engaged in inappropriate use of government equipment related to sending and receiving e-mail with contents ranging from jokes to nudity.

Forensic Investigation of IT Activity

106As part of his independent investigation of the Grievor’s conduct, Dale Beare asked David Langille, an IT forensic specialist, to conduct a forensic investigation into the Grievor’s IT activity. Information was retrieved from the hard drive at the Grievor’s workstations, at both the Wilson and Yonge offices and from her e-mail account. Mr. Langille reported the following content:

a. An invoice from a travel agency billed to the Grievor for a trip to Mexico departing on August 18, 2007 and returning August 25, 2007. The passengers are listed as her daughter, SC, and VI, the Dependent Child of Client 1: NP.

b. Temporary Internet cache files indicate that the Grievor viewed the SDMT account information for all of the identified clients.

c. Emails and invoices regarding travel plans and the personal relationship between the Grievor and Mr. Paul Corey.

d. Email communication between the Grievor and Paul Corey consisted of:

i. 127 Emails received by the Grievor, the majority containing jokes, including some with potentially inappropriate content;

ii. 40 Emails sent by the Grievor, the majority containing jokes.

e. 47 potentially inappropriate emails with content ranging from jokes to nudity: 29 sent by the Grievor and 17 received by her.

107Copies of all relevant data were included as an appendix. Including a non-transferable Voucher for 7 nights, double accommodation in the name of SC and VI, paid by credit card by the Grievor. Details of cartoons and jokes with sexual content including references to sexual acts or with sexual overtones, some nudity, inappropriate language and that made fun of people who are obese, racial minorities and in receipt of social assistance. There was no indication that the Grievor downloaded or created the offensive content nor of any complaints regarding offensive material.

108The Grievor testified that she received training on the appropriate use of I & IT resources, including anti-discrimination training. The common practice in the office was that everyone used the computer for personal e-mail on occasion. Although she did use her computer at work for personal e-mail, she did not use it on a regular or daily basis. She thought that she only used it a few times over the 11 years that she was at ODSP. She testified that she would look at jokes that she received as e-mail, she might think they were funny, but would then get right back to work. When she reviewed the binder of e-mail records, she appreciated that some of the jokes might have been offensive to some people. This was the first time that she realized that they were inappropriate.

Disciplinary meetings

109A disciplinary meeting with the Grievor was convened on December 1, 2008 and management reviewed the allegations and findings of the three investigations conducted by Mr. Khadim, Mr. Beare and Mr. Langille. The Grievor was given a binder of all relevant documents and told that she did not need to respond at that time, but that they would reconvene on December 5 to consider her response.

110The Grievor testified that when she responded at the next meeting, she told management that she had nothing to hide and was ready to provide her explanations. She admitted that she might have made an entry error but that she had a very heavy caseload, which was stressful and overwhelming. She also admitted that some of the content in the e-mails that she received and sent from work were offensive; she did not realize it at the time, but understands now that they raise WDHP issues. She did not intend to blame other staff or the clients themselves, although sometimes she mentioned other staff to explain what might have happened.

111Marilyn Renwick, was the decision maker in all cases where there was serious misconduct, including the Grievor’s discharge. She attended the disciplinary meetings on December 1 and 5, 2008 and reviewed all relevant documentation. After she considered the findings of the various investigations, she concluded that the Grievor entered false information in STMD and deliberately granted benefits to clients who were not entitled to receive them. She further concluded that the Grievor improperly transferred client files to continue granting benefits and avoid detection. In contrast to the investigated files, where documents were missing or files were lost, the files that were part of the random file review were fully documented and the benefits that were approved corresponded to the documentation.

112With respect to the conflict of interest issue, Ms. Renwick testified that the purpose of the policy is two fold: so that employees will declare conflicts of interest and declare situations where a conflict might appear to be an issue. In this case, the Grievor and her partner worked together in recommending and approving benefits. The Grievor did not report her potential conflict of interest and appeared not to be concerned that there could be a real or perceived conflict. This conduct contributed to Ms. Renwick’s perception of the Grievor as an individual who was unable to work with integrity. Ms. Renwick further testified that she considered the e-mail material that the Grievor had sent and received to be grossly inappropriate.

113Ms. Renwick regarded the Grievor’s conduct as giving rise to significant consequences for both the Ministry and their clients. Her actions caused hardship for the individual clients, who were subject to reassessment, with attendant reduction or termination of benefits, and, in at least one case, the assessment of a significant overpayment. Ministry programmes must operate with integrity to ensure that the public trust is justified. The Grievor’s actions served to undermine that public trust.

114Ms. Renwick determined that the Grievor breached the following standards of conduct:

a. Competence and productivity: The Grievor failed to carry out her duties in accordance with programme standards, governing legislation and administrative requirements. Specifically, she granted over $100,000 in benefits to which the clients at issue were not entitled.

b. Lawful and honest conduct: The Grievor breached the public trust and did not apply programme standards and directives in a lawful manner. The Grievor gave benefits to clients without documentation to support entitlement and subsequently denied any wrongdoing.

c. Orderly conduct: The Grievor’s conduct with respect to the 6 clients that were the subject of the investigation placed the Ministry at risk and caused significant financial hardship for the clients. The Grievor’s also undermined her relationship with other staff and compromised the workplace through the use of the Internet to communicate racist, inappropriate and embarrassing information.

115Ultimately, Ms. Renwick concluded that the Grievor was not forthcoming in her responses to management’s allegations and that her conduct constituted a serious breach of trust. In her view, the employment relationship was irrevocably broken. The Grievor had not explained her conduct and did not indicate that she had learned anything that would alter her subsequent conduct. She thought that the Grievor was no longer capable of being a public servant who would act with integrity and honesty in the future and that, therefore, the Grievor’s dismissal was the only appropriate course of disciplinary action. A final disciplinary meeting was convened on December 12, 2008, at which the Grievor was given a letter of dismissal.

Submissions of the Parties

116The Employer alleges that the Grievor deliberately approved benefits for clients without the proper documentation and in disregard of programme requirements. Her conduct had a serious impact on the individual clients, who subsequently either had their benefits reduced or were assessed an overpayment, and on the Ministry’s reputation and its staff. ODSP is accountable for the administration of public funds and in this case the Grievor approved over $100,000 in unsupported benefits.

117Numerous irregularities were found in the 6 client that were investigated and a pattern of conduct was evident throughout: the Grievor had significant contact with clients not on her caseload; there was limited or no other staff involvement; all of the clients requested a transfer at the same time and to the same location as the Grievor; documentation to support eligibility for benefits was consistently missing; single payments were entered as ongoing monthly benefits; and clients received higher than usual benefit amounts. None of these problems were seen in any of the Grievor’s other cases in either the random file review or as reported by the staff that assumed her caseload.

118The Grievor has been unable to provide a credible explanation for the irregularities in her files, pointing to general issues of workload, computer glitches or employment seminars that the clients might have attended. In the Employer’s submission these were mere attempts to deflect blame and do not explain why, if there were innocent explanations, these issues only arise in these 6 client files. There was ample evidence that the Grievor knew the proper procedure and how to apply it, but did not do so in these cases.

119The Employer further submits that, although it did not rely heavily on either the evidence of conflict of interest or inappropriate use of IT resources, evidence of her general conduct further supports the conclusion that the Grievor breached the public trust and did not act with integrity. When the Grievor declared her spousal relationship and potential conflict of interest, she did not raise the Employer’s true concerns. Her declaration was woefully inadequate, if not misleading. Similarly, although there was no dispute that some of the material that she received and sent using corporate IT resources was inappropriate, the Grievor showed no remorse and did not appreciate the seriousness of her conduct.

120In the Employer’s submission, the actions of the Grievor were deliberate and have resulted in significant harm. She has provided no reasonable explanation for the irregularities in the files that she worked on and has shown no remorse for any of her conduct. There is every indication that the Grievor would continue with the same behaviour if she were still employed at ODSP. In these circumstances, dismissal is the only appropriate outcome.

121The Employer relied on the following cases as examples in which dismissal was upheld for deliberate acts of dishonesty, even where there was no apparent motivation or personal benefit: Re Brewers Retail Inc. and United Food and Commercial Workers International Union Local 12R24 (Eaglesham), 168 L.A.C. (4th) 85 (Shime); Re British Columbia and B.C.G.E.U. (Grierson), (2010) 194 L.A.C. (4th) 97 (Steves); Re Canadian Broadcasting Corporation and Canadian Union of Public Employees (1979), 1979 CanLII 4015 (CA LA), 23 L.A.C. (2d) 227 (Arthurs); Cominco Ltd. v. United Steelworkers of America, Local 480 (Constantin Grievance), [1999] B.C.C.A.A. No. 562 (Larson); Conagra Ltd. – Lamb-Weston Division v. United Steelworkers of America, Local Union 6034 (Larsen Grievance), [2004] A.G.A.A. No. 62 (Tettensor); Re Eastern Ontario Health Unit and Canadian Union of Public Employees, Local 1997 (1986), 1986 CanLII 6755 (ON LA), 23 L.A.C. (3d) 258 (Willes); Insurance Corp. of British Columbia and O.P.E.I.U., Loc. 378 (Huettl) (1997), 1997 CanLII 24979 (BC LA), 68 L.A.C. (4th) 308 (Glass); International Brotherhood of Electrical Workers, Local 348 v. Telus Corp. (McDermott Grievance), [1999] C.L.A.D. No. 705 (McFetridge); Re Mirvish (Ed) Enterprises Ltd. and Restaurant Employees Union, Loc. 75 (1988), 1988 CanLII 9241 (ON LA), 34 L.A.C. (3d) 1 (Haefling); OPSEU (Lanctot) and MOL, GSB No.1226/84, May 5, 1995 (Verity); OPSEU (Lewis) and Min. Education and Training, GSB No. 1222/99, February 15, 2001 (Abramsky); McIntyre and Treasury Board (Revenue Canada – Customs and Excise), [1994] C.P.S.S.R.B. No. 101 (Turner); Pagé v. Deputy Head (Service Canada), [2009] C.P.S.L.R.B. no. 26 (Bédard); Suncor Inc., Oil Sands Group and Communications, Energy and Paperworkers Union Local 707 (York) (1996), 42 C.L.A.S. 252 (Tettensor).

122In the alternative, the Employer argued that if dismissal was not upheld, this was an appropriate case in which the Arbitrator should substitute damages in lieu of reinstatement. Akin to cases in which this remedy has been ordered, the Grievor did not admit responsibility, attempted to deflect blame on others and showed no lack of remorse or appreciation that she did anything wrong. The Grievor was in a position of trust and the Ministry should not be required to take her back when they can no longer trust her: A.U.P.E. v. Lethbridge Community College, (2004) 2004 SCC 28, 238 D.L.R. (4th) 385 (SCC); OLBEU (Massa) and LCBO, GSB No. 2033/97, February 15, 2000 (Abramsky).

123The Union submits that the Employer must demonstrate by “clear, cogent and convincing” evidence that the Grievor engaged in deliberate actions that were dishonest or a breach of trust. In this case, the Union submits that the Employer has not satisfied their onus to prove the allegations they rely on as just cause for the Grievor’s dismissal.

124The Union strenuously denies that the Grievor was dishonest. She was a dedicated employee who cared deeply about her job. She would often go the extra mile to provide service to clients, including assisting other staff and clients when clients required an interpreter. She was forthcoming and fully co-operated with management when this matter was investigated. She had a caseload of several hundred files, but did her best to recall the pertinent details related to the client files at issue. She answered management’s questions to the best of her ability and offered what explanations she could. She acknowledged some mistakes, but simply did not know what happened in many instances. Management could have followed up on some of her explanations, but they did not.

125In the Union’s submission, the Employer has offered no direct evidence of wrongdoing by the Grievor. They have pointed out errors, anomalies and documents that they could not find during their review. There was no evidence of personal gain or personal relationships with the clients at issue. The only exception is the evidence regarding Client 1:NP’s granddaughter, VI. The Employer has offered no clear view of why the Grievor would act in the manner that they allege. In the Union’s submission, the lack of evidence regarding the Grievor’s motivation seriously undermines the Employers’ case.

126The Union submits that the “ patterns” that the Employer relied on regarding the client files were drastically over-stated. On close examination, they disclosed distinct, individual occurrences, many of which can be explained in a manner that does not implicate the Grievor. Patterns that do emerge, can largely be explained by factors other than deliberate misconduct:

a. Work on files not on the Grievor caseload: All of the clients spoke English as a second language and their first language was one spoken by the Grievor. The Grievor had contact with them at the Wilson office, before moving to Yonge, and the Employer did not check to see if they were part of the Grievor’s caseload at Wilson. There was evidence that clients would call individual staff directly.

b. Use of similar phrases in STMD entries: There was no evidence that this was inappropriate and it seems reasonable that staff would use recurrent phrases when making frequent entries in a computerised record system.

c. No other staff involved: The files indicate that other staff made a number of entries. In any event, the evidence established that an ISS has the delegated authority to approve benefits and that there were a number of instances when an ISS would have direct contact with clients.

d. Missing files or documents: There was evidence from a number of witnesses that the file room experienced frequent backlogs and that documents were sometimes located in the wrong file or not at all.

127The Employer relied on the results of the random file review to demonstrate that the Grievor was aware of the proper business process. In the Union’s submission, these results were consistent with the view that the Grievor was generally a careful worker who produced high quality work. Similarly, the presence of documentation in the randomly selected cases does not demonstrate that there could not be innocent reasons that the documents were missing in the 6 files at issue.

128The Union argued that management’s random file review raised a number of problems: only a small sample of files was reviewed, very little detail was provided and management did not look at all irregularities. In particular, management failed to look at E-SUB and LCECM, the benefits where there was a dispute regarding the need for written documentation of the request. Management also failed to provide details with respect to its assertion that no similar issues have arisen since the Grievor’s files were assumed by other staff.

129The Union accepts the principles set out in the cases relied upon by the Employer. Nonetheless, it submitted that they are of marginal value in this case as they are all distinguishable on their facts. In many of the cases, the facts were not in dispute, whereas in this case, whether the irregularities are the result of innocent error or deliberate action is very much in dispute.

130The Union further denied that the Grievor had a real or perceived conflict of interest either as a result of her relationship or her daughter’s friendship with VI, NP’s granddaughter or with Paul Corey. The Grievor did not know that VI was her daughter’s friend or that she had paid for her vacation until it was raised during the investigation. With respect to her spousal relationship, it was well known by management and no one suggested there was a possible conflict. Mr. Corey did not supervise the Grievor and did not share a caseload with her. In these circumstances, it was not reasonable to expect that the Grievor should have declared a conflict or possible conflict of interest. Once it was raised with the Grievor, she promptly filed a declaration.

131The Union conceded that the e-mail material that the Grievor received and forwarded on her corporate computer was inappropriate. Nonetheless, the Grievor’s conduct did not warrant significant disciplinary action. The Union relied on MNR v. OPSEU (Wickett) (2005) 2005 CanLII 94236 (ON LA), 143 LAC (4th) 14 (Petryshen), as the leading case at the GSB on inappropriate IT use. The material in Wickett was far more serious, involving a large volume of material that included violent, degrading and dehumanising sexual content. Notwithstanding the egregious nature of the material, discharge was not upheld. In this instance, the material was widely circulated by other employees, and management responded only minimally to their conduct, all of which should be considered in determining the appropriate penalty for the Grievor.

132The Union submitted that damages in lieu of reinstatement was an exceptional remedy; in the normal course, where a discharge is not upheld, the Grievor is entitled to reinstatement. In this case, there are no exceptional circumstances that warrant such a remedy: OPSEU (Giraudy et al) v. CSCS, GSB No. 2004-3120, September 8, 2007 (Petryshen); OPSEU (Rodrigues) v. MOL, GSB No.2005-1927, April 24, 2007 (Brown); and PENGO (Shannon) v. Min. of the Environment, GSB No. 2002-2915, August 15, 2005 (Herlich).

Analysis

Conflict of Interest and Violation of I & IT Policy and WDHP

133The primary grounds upon which the Grievor was dismissed relate to the alleged improprieties in 6 client files. I propose to focus largely on those allegations, however I begin with my conclusion that discharge is not warranted on the basis of either the alleged conflict of interest or inappropriate use of IT. If the Grievor’s discharge is sustained, it must be on the basis of the alleged dishonesty.

134With respect to the issue of conflict of interest, I am simply not satisfied that Ms. Chabanova engaged in any misconduct in this regard. I accept her evidence, which was not disputed by the Employer, that her managers were well aware of her relationship with Paul Corey and that the issue of a possible conflict of interest was never raised with her. While Ms. Chabanova and Mr. Cory did occasionally work on the same file, it rarely occurred and, at least in one instance, was at the request of their manager. Mr. Cory did not supervise Ms. Chabanova and they were not assigned to the same team. Although one could argue that the more prudent course would have been to file a declaration of potential conflict of interest, I do not think that the failure to do so in these circumstances amounts to culpable conduct.

135The Employer also alleged that the Grievor violated the I & IT policy and the WDHP when she sent and received certain e-mail communication. The Union has conceded that the content of a number of these e-mails were inappropriate: they contained nudity, jokes with sexual references and obscenity, and some were clearly demeaning to persons with disabilities and recipients of social assistance. I accept that the material was offensive and clearly inappropriate, especially in light of the work performed in the Grievor’s programme area. On a relative scale, however, the material was fairly mild and, in my view, at most would warrant a minor suspension. Discharge would be grossly excessive.

Administration of benefits in 6 client files

136I turn then to what I regard as the substantive reason for the Grievor’s discharge, her conduct in granting benefits to 6 individual clients. The Employer asserts that the evidence demonstrates a wilful and deliberate breach of public trust when the Grievor approved benefits without the required documentation and without establishing that the clients had met the programme eligibility requirements. They further allege that her actions resulted in the payment of roughly $100,000 in unsupported benefits.

137The Union denies that the Grievor has done anything wrong in handling these files. The Union submits that the issues that have been identified were the result of innocent circumstance, but that the Grievor properly exercised her discretion in accordance with accepted or widely tolerated practices. Given the nature of the Employer’s allegations, the parties agreed that the Employer must prove its case, on a balance of probabilities, by clear, cogent and convincing evidence.

138In assessing the evidence I have not taken into account any of the client witness statements that were given to Dale Beare, the FIT investigator. The Union did not consent to the admission of the interviews for the truth of their contents, properly contending that the clients should be called so that they could be cross-examined. Furthermore, all of the clients spoke very limited English and only one had the assistance of an interpreter. The audio record of these interviews satisfied me that there were significant language limitations that undermined the credibility of the clients’ responses. They did not appear to fully comprehend the questions that they were asked or provide a comprehensive response. I have therefore only considered the direct evidence of those clients that gave vive voce testimony.

139The issue before me is essentially a factual question: can the employer demonstrate on a balance of probabilities by clear, cogent and convincing evidence that the Grievor deliberately approved benefits without due regard to programme requirements, thereby breaching the public trust: has she engaged in culpable conduct or is she the innocent victim of circumstance?

140The Union strenuously denies the conclusion reached by management and the Employer was put to the strict proof of its case. The Grievor testified that she always exercised her discretion in accordance with programme Directives and policy. She approved benefits where eligibility had been established and she always obtained the required documentation. Where errors were made, they were innocent mistakes or resulted from action that did not involve her. In some cases the clients might have lied, or there might have been system “glitches”. Moreover, the staff do not always exercise their discretion in the same manner and therefore, what appeared to be an anomaly, was actually the expression of a common practice. Finally, the Grievor insisted that she sent all of the required documents to file and they must have been misplaced, misfiled or lost.

141I have already reviewed the evidence in detail and I do not intend to address each instance where there were allegations of impropriety. Instead, I have considered the evidence as a whole in determining whether the Employer has established deliberate and wilful conduct. There are several broad themes that emerged regarding the manner in which the Grievor was alleged to have administered certain files at issue. I will consider each in turn.

142For many of the alleged contraventions of policy, the Grievor was the only one who testified to possible exculpatory explanations. Therefore, before turning to the overarching themes, I want to comment on my assessment of the Grievor’s credibility. After a thorough review of the evidence, I have serious reservations about the Grievor’s credibility. In my view, it was significantly undermined by her testimony at arbitration, the evidence of the clients, where available, and the circumstances surrounding Client 1: NP, and her granddaughter, VI.

143At arbitration, I found that the Grievor was frequently evasive, answering in vague terms and ultimately explaining her conduct by resorting to her assertion that she always acted “within her discretion”, “was thinking outside the box” or “if she made the entry in STMD, then she must have seen the required documentation”. She was always very pleasant, but she was not forthcoming.

144Virtually all of her answers were general assertions, rather than specific and detailed explanations. Where she did offer specific details, her evidence shifted in cross-examination, such as her attempt to explain what qualified Client 2: EA for a C-SUMB and what documentation she saw to support approval of an E-SUB for Client 1: NP. The Grievor’s testimony was frequently self-serving, and either could not be independently verified or, where it could, was refuted by other witnesses. Although I do not regard her relationship with Paul Corey as a conflict of interest that required a formal declaration, I do consider her conduct in making her declaration as less than fulsome.

145I am especially troubled by the circumstances surrounding the addition of VI as a dependent child. There are three distinct issues that give me serious pause: the Grievor’s relationship with VI; the timeline and detail surrounding VI being added as a dependent child; and the issuance of Special Diet arrears.

146A travel voucher, issued on August 16, 2008 and forwarded to the Grievor, confirmed air travel and hotel accommodation, double occupancy, for SC, the Grievor’s daughter, and Valeria I, NP’s granddaughter. In a subsequent e-mail exchange between the Grievor and her daughter while her daughter was away, the Grievor said “Say Hi to Lera.” The Grievor admitted to paying for the trip for both girls, but testified that she did not know VI, had never met her and did not appreciate that she was the granddaughter of her client, NP. I find this highly unlikely.

147When the Grievor was first asked by Mr. Beare if her daughter was friends with VI, she said that her daughter has many friends and she has heard her mention VI’s name. Mr. Beare then asked if they took a trip together and said that this might be a conflict of interest. The Grievor responded by saying that a number of them went on a trip together and she cannot control who her daughter has a friend. It was only when she was specifically asked if she paid for VI’s trip that she acknowledged that she had, but said it was because the friend did not have a credit card. She also said that she was repaid and didn’t know if her daughter has stayed in touch with VI. She continued her defence by adding that VI was a very common Russian first and last name. She thought that VI was NP’s granddaughter but that had nothing to do with her caseload.

148What is striking about the way the interview unfolded, is that the Grievor consistently withheld information until she was asked a direct question that made it clear that the investigator knew about the potentially incriminating details. If, as she insisted, there was an innocent explanation for her actions, there was no reason for her not to have been more forthcoming. Every time that a new detail about VI was raised, she tried to minimise the impact of her admission: her daughter has many friends, she can’t control her daughter’s relationships, she doesn’t know if her daughter and VI are still friends; VI is a common name and then, in the end, when faced with the clear implication that she had a conflict of interest, she simply said that it doesn’t matter and has nothing to do with her caseload.

149At arbitration, the Grievor maintained that she did not know VI or NP personally. Nor did she know that her daughter had taken a trip with VI until Mr. Beare raised it in her interview. She paid for their trip as a favour to her daughter. VI did not have her own credit card and so the Grievor agreed to pay for both trips so that her daughter and her friend would be together on the plane and in the hotel. Yet, when she was asked in cross-examination about why she told her daughter to say “Hi to Lera”, she denied that Lera was short for Valeria, VI’s first name and resisted the suggestion that she knew VI. When asked to whom she was referring, she said that Lera was one of her daughter’s friends, she did not know her last name, but she said to say hello to her because her daughter had told her Lera was her room mate.

150It is impossible to reconcile the Grievor’s evidence. The voucher confirmed that VI and the Grievor’s daughter were travelling together and shared double occupancy accommodation. Indeed, the Grievor’s reason for paying for VI’s trip was so that she could be with her daughter on the plane and in the hotel. Based on all of this information, there appears to be little doubt that VI was the Grievor’s daughter’s roommate, the person she said she referenced in her e-mail. The Grievor insisted, however, that Lera was not short for Valeria, VI’s first name. So, either Lera is short for Valeria, or VI was not her daughter’s roommate. I regard this as another example of where the Grievor attempted to cast her evidence in the best possible light, to the point that she was not truthful.

151The benefits that the Grievor approved for NP when VI was added as a dependent child were also questionable, with demonstrable irregularities in relation to all of the Grievor’s actions. There was no documentation on file to establish that NP had legal custody of VI, VI’s school attendance records documented a different address and TCHC confirmed that the Grievor was living alone and had not moved. VI’s name was also attached to an Ontario Works benefit unit. The Grievor’s entry on November 6, 2007 when VI was added as a dependent child indicates that NP had submitted verification that she had legal custody in April, but the documents could not be located. She testified that she asked NP to resubmit the documents. The Grievor nonetheless proceeded to add VI as a dependent, notwithstanding that she could not find the supporting documentation and had not yet received replacements.

152There were further irregularities. Neither note detail regarding the file transfer and initial C-SUMB revealed the relevant details. They did not document the need to move to a larger apartment. Nor did the C-SUMB note explain what household goods the client needed to purchase. There was also no documentation on file to support the move.

153The Grievor testified that when she approved a C-SUMB she would ask the client for a copy of the lease, a letter from the landlord or from the client. She would also get a list of household items the client needed, moving costs or eviction notice. Yet, when it was pointed out on cross-examination that none of those details were mentioned in her note, she said those were just examples and she did not have to include all of the details in her STMD entry. She also added that at some point she was trained not to give details when she was dealing with client’s health or personal life. Again, this evidence appears self-serving and inconsistent with the details included in other client entries.

154The timeline for the approval of these benefits also raises a number of questions. The Grievor paid for VI’s trip in August 2007 and acknowledges that she saw her name at that time. On September 7, 2007 she transferred NP’s file from Yonge to Wilson. The Grievor understood that NP was temporarily staying downtown in a larger apartment to accommodate her granddaughter, who was now living with her. On September 27, 2007 she approved a C-SUMB in relation to this move. On November 6, 2007 she added VI as a dependent child and on November 30 approved an additional amount for the C-SUMB that was payable when there are dependants. On December 18, 2007 she approved an arrears cheque for a Special Diet Allowance for VI.

155By her own account, the Grievor was a conscientious ISS who always tried to ensure that clients were receiving the benefits to which they were entitled. Why then, did she not inquire about VI’s status as a dependent child when NP first told her in September that she was taking care of her? Even if she would not have thought to ensure that VI was added to the benefit unit in early September when she transferred the file, surely it would have occurred to her when she approved a C-SUMB later in September to purchase household items on account of VI moving in with NP.

156The Grievor also said that NP did not contact her in April 2007 when she initially submitted the documentation with respect to VI. The Grievor subsequently explained that NP most likely contacted her directly when she received and approved taxi receipts for an MSN travel benefit in March and June 2007. If that was the case, it seems odd that she would not have also contacted her in April regarding VI. In any event, if NP had initially submitted documentation to support her request with respect to VI in April 2007, the logical time for her to follow up on her request was when she told the Grievor that she needed to move to a larger apartment and requested a C-SUMB, all of which was reputed to be as a result of VI having moved in with NP.

157It is also surprising that VI’s name would not have registered with the Grievor as her daughter’s friend when she was added as a dependent child or NP advised that she was moving to accommodate VI. The Grievor could not recall whether NP referred to her granddaughter by name in September, October or November. At most the Grievor first heard VI’s name within a couple of months of VI going on a trip with the Grievor’s daughter. Potentially, it was within days. Even if both V and I are common first and last names, both names together should have at least rung a bell for the Grievor when she discovered that was NP’s granddaughter.

158The Grievor’s approval of arrears for a Special Diet Allowance is similarly disturbing. The benefit was entered on December 18, 2007 and backdated to April of that year. Again, it is not clear why this was not approved when VI was added to the benefit unit in early November or when a top up of the C-SUMB was approved in late November. Moreover, the system records indicate that the Grievor modified the benefit using a manual override. The Grievor denied that she entered an override and suggested that the system did this on its own. She did not explain how that was possible and I find it extremely doubtful.

159Nor was there a credible explanation for why arrears were owing. On its face it makes no sense: how could there be an MSN form for a Special Diet Allowance dating back to April when VI was not added as a dependent child until November? I suppose that it is conceivable that NP received a Form in April if that is when she initially requested that VI be added as a dependent. The Grievor acknowledged that the rest of the documents NP submitted in April to verify that she had custody of VI were not in the file in November. It seems highly unlikely the Special Diet Form would be the only document that was not lost or misfiled. Nor did the Grievor mention that a Special Diet Form was on file when she approved VI in November. If the Form was available, VI should have been approved at that time, not 6 weeks later.

160My conclusion that the Grievor is not credible continues to play out in the particulars of her administration of the 6 client files. The overwhelming body of evidence in this case supports the Employer’s position that her conduct was a deliberate breach of trust. The Grievor and the Union offered various explanations for these anomalies. Although possible, none of the explanations were plausible. In every instance, the overwhelming weight of the evidence was inconsistent with the Grievor’s explanation. An assessment of each shortcoming identified by the Employer inevitably leads me to the conclusion that the Grievor was not truthful and acted dishonestly.

161The 6 client files that were the subject of investigation reveal a disturbing pattern. In my view, the Grievor’s lack of credibility undermines the veracity of her evidence that all of the irregularities in these files were mere coincidence. I have concluded that the evidence supports the following findings:

a. There was no documentation to support the benefits that were granted and no credible explanation for their absence. I find that the Grievor approved benefits without supporting documents;

b. The Grievor knew the proper business practices but, by her own admission, did not always follow them;

c. There was a recurring pattern of similar, questionable entitlements. I find that these were the result of the Grievor’s deliberate action and that she approved benefits knowing that the eligibility requirements had not been met;

d. STMD note details were extremely vague and often included verbatim notes used in other client files. I find that this was due to the irregular administration of benefits;

e. Benefit details were not supported by any other evidence and was frequently at odds with it, which is in keeping with my finding that benefits were approved without meeting eligibility criteria;

f. There was repeated and extensive involvement in cases that were not on the Grievor’s caseload and no notation that the responsible ISS had been informed of action taken for their client;

g. There was no involvement of other staff, such as the CSR or MSN clerk in circumstances when they would ordinarily assist with file management;

h. The Grievor transferred the files from Wilson to Yonge for all of these clients at the same time that she moved there. At least one of the clients denied moving or requesting a transfer and at least one other was found to have the wrong address listed on their file. I find that these moves were initiated or encouraged by the Grievor so that she could continue to administer these files.

162The evidence overwhelmingly supports my findings. There was no dispute that no one could find the documentation that would support the benefits that the Grievor granted. In all 6 cases the entire MSN file was missing. There are only two options to account for the total lack of supporting documentation. Either, it was the result of the Grievor’s failure to obtain the required documents or due to misfiling or loss of the documents in some instances and no requirement that the client submit documents in the remainder.

163I cannot accept that all of these documents were misfiled or lost. It simply defies credibility to suggest that every document, for every benefit granted to 6 different clients would just go missing.

164There was some evidence that the file room was disorganized and that there was a backlog of filing. ODSP administers many thousands of clients across the province and caseworkers are responsible for several hundred case files at any given point in time. In these circumstances, it is hardly surprising that some documents, on some occasions might get lost or misfiled. The Employer disputed this characterization, but, even if I accept it at face value, there was no evidence that misfiling was so rampant or that misplaced documents was so common that it would explain the absence of all of the documentation in these 6 client files. The evidence at best was that other staff experienced similar issues of missing documents on an occasional basis.

165Nor do these explanations adequately explain why the problem only surfaces in these 6 files. If documents were missing because of filing errors, I would expect that the errors would be randomly distributed across the Grievor’s caseload and not clustered in the same 6 files. If lost documentation was a common occurrence, documents should have similarly been missing from the other files that the Grievor handled. They were not. The random file review of the Grievor’s cases did not come across similar problems and there have been no reported problems with any of the Grievor’s cases after she left and other staff assumed her caseload.

166The Grievor also suggested that she was not required to obtain documentation in some instances and that there were other instances when it was within her discretion to dispense with documentation requirements. I accept that there was no need to obtain documents before issuing the LCECM. There is no such requirement in the Directive and there was no evidence of one in practice.

167The Grievor also said that she was advised that E-SUB requests could be approved on the basis of a phone call only, in accordance with a specific programme campaign going on at that time. I do not believe this is true. The Grievor did not say who advised her of a change in policy and did not produce a written memo to that effect. No other witness supported her statements and her belief flies in the face of the express language used in the applicable Directive.

168Moreover, according to the Grievor, the campaign was in 2005 or 2006, and the approvals at issue were in 2007 for clients who were not in the target group for whom the campaign was designed. This campaign involved large public meetings to encourage clients to look for work and inform them of a benefit that could assist them in their job search and return to work. I do not think that the Grievor was ever told that she could disregard the express documentation requirements set out in the Directive in conjunction with this campaign.

169Similarly, she said she did not always have to get receipts when C-SUMB benefits were issued. With respect to client 1: NP, the Grievor testified that although the Directive says that actual receipts must follow, that does not necessarily apply in every case and is not the common practice. The Grievor was alone in this view. Her testimony is in clear contradiction with the express language used in the operative Directive. No other witness testified that this was the common practice. Nor did the Grievor provide any detail of the types of situations where this would be appropriate.

170The Employer relied on the results of the random file review to demonstrate that the Grievor was aware of the proper business process and that there were no problems in her other cases. In the Union’s submission, the review was flawed and the fact that there were no missing documents in the randomly selected cases does not prove that the documents were not missing for innocent reasons.

171I agree with the Union’s submission to the extent that it would have been preferable if the random file review had included more files, provided more detail and examined whether the manner in which the Grievor approved E-SUB and LCECM benefits was consistent with her conduct in these 6 cases.

172I do not agree that these failings bolster the Union’s position. Despite the limitations inherent in the way that the random file review was conducted, these results are only one small piece of the puzzle. The results are also consistent with all of the other evidence in this regard, with the sole exception being the Griever’s testimony. Based on the overwhelming preponderance of evidence, I do not believe that there is an innocent explanation for the lack of documentation in these files. I find that the Grievor did not request documentation to support programme eligibility.

173My conclusion that the Grievor deliberately ignored programme requirements is further reinforced by her admission that she did not follow policies that she knew were in force in other instances:

a. She did not follow up after granting an E-SUB to determine if the client was working or still searching for employment;

b. She acknowledged that she did not always ask for receipts after a client received a C-SUMB despite the fact that this was an express requirement set out in the operative Directive;

c. She approved 2 LCECM benefits for client 1: NP, again, ignoring the stricture that clients were only eligible to receive the benefit once;

d. She also approved an LCECM benefit for client 6:LR when she was a CSR and did not have the delegated authority to do so;

e. She acknowledged that she was told to use a client’s 65th birthday as the end date for benefits. Notwithstanding these instructions, she did not really think it was important and continued to use 2099 as an end date in some cases.

174There was also a recurring pattern of questionable entitlement in the 6 client files, which I have concluded was deliberate and dishonest:

a. The clients all received the maximum entitlement for an E-SUB in December, except client 3:VB, who received it on one occasion in the middle of November. There was no follow up and no specifics with respect to how the benefits were to be used. The clients largely denied looking for work in 2007 when the benefit was approved;

b. The MSN travel benefit received by a number of the clients, including client 1: NP, 3: VB, 5:LK and 6:LR, jumped substantially after the Grievor became an acting ISS. There was no indication that a new MSN form, approving additional benefits, authorized these payments;

c. Similarly, after the Grievor became an acting ISS she made an entry error for 3 different clients, Client 1:NP, 4:VB and 5:LK, so that receipted MSN travel benefits for a multiple month period was paid every month, as an ongoing benefit.

175There were also issues with the STMD note details. The note details were consistently vague and often included verbatim notes used in other client files. The benefit details that were provided were not supported by any other evidence and were frequently at odds with it. For example, a number of the witnesses testified that they were not working or looking for work during the period that they received an E-SUB and did not request the benefit. Their personal circumstances, including poor health and age, support their denial that they had looked for work when the Grievor approved an E-SUB for them.

176The STMD notes for client 2: EA, say she asked for her file to be transferred because she was moving in with her 87 year old mother. She also requested a C-SUMB in order to purchase “some household items”. When the client testified, she said that her mother was dead, that she did not move and did not request a transfer. There was no documentation on file, no STMD entry of a current address downtown, no details of what needed to be purchased, no receipts and no evidence of any follow up to determine actual purchases. Moreover, on its face, it does not seem logical that this move, where two households were being consolidated, would necessitate the purchase of additional household items. The Grievor’s explanation of the basis on which the C-SUMB was granted was also not credible: she was evasive, her answers kept shifting and in the end, she simply fell back to her standard recitation that she used her discretion and was thinking outside the box.

177Client 2: EA, was also found to be in receipt of OAS/GIS benefit with no record of an assignment at either the ODSP office or HRDC. There was a letter on file that indicated that the client would be eligible to receive the benefit effective April 2007. Despite this letter, the Grievor testified that she reinstated ODSP benefits because the client told her that she was not receiving the benefit yet.

178The client denied the Grievor’s version of events, there was no written confirmation on file and no evidence of an assignment. In order to accept the Grievor’s account, I would have to find that the client lied, that the assignment was misfiled at ODSP and that HRDC either did not receive or lost both the faxed copy of the assignment and the one that was mailed to them. In my view, the far more likely explanation is that there was no signed assignment.

179The Grievor frequently used the same language when she approved benefits for these 6 clients. The Union submits that it is not unusual that when standard entries are made in the system that individuals would use similar language. In this case, it was not just that similar language was used, but that identical phrases were consistently used and were strikingly devoid of meaningful detail. While I accept the Union’s submission that one could anticipate that an ISS might use stock phrases when approving benefits in similar circumstances, the Grievor used the same phrases in virtually every instance. She frequently provided no more detail than the bald assertion that the client “is eligible”, without notes that provide sufficient detail to indicate that eligibility was in fact verified.

180For example, every LCECM benefit was “to assist with energy conservation measures”. There were absolutely no particulars of what was needed or any indication that the Grievor had established that the client was required to purchase the items her or himself. At a minimum, the Grievor failed to enter STMD notes that document her effort to determine actual entitlement. Similarly, all of the E-SUB requests were some variation on “to purchase appropriate clothes for interviews” and/or “for resume writing”.

181Overall, there was a discernable failure to demonstrate that the clients were in fact eligible for the benefits that the Grievor approved. Again, the Grievor’s entries with respect to the LCECM benefit are telling. Although I have found that there was no need to obtain documents before issuing this benefit, that did not displace the need to verify entitlement. Entitlement is not automatic on request. There were still eligibility requirements that were supposed to be met before the benefit was approved.

182Eligibility criteria must be satisfied before issuing any benefit, including the LCECM, and there was no indication that the Grievor actually exercised her discretion, other than to grant the benefit if it was “requested”. Whereas Ms. Perez testified that she would issue the benefit where it was requested and she saw that “the client had to pay for these expenses”. The Grievor’s notes in STMD and her evidence at arbitration gave no indication that she attempted to verify eligibility. The clients in these 6 cases were all renters, no specific expenses were listed and there was no indication that they were responsible for purchasing any “energy conservation measures”.

183Similarly, she granted all of these clients the maximum benefit of $500 for employment related activity to “buy clothing, grooming or resume activities”. Again, there were no details of how the money was spent, there was no follow up and no critical analysis of how much was actually required by the client to pay for the necessary goods or services. A number of the clients had received the maximum of $500 the previous year, almost to the day, and one might wonder whether an additional $500 was required for essentially identical reasons. Presumably the clothes purchased the previous year could still be worn, or if not, some explanation should have been provided. Nor was any other follow up done. No inquiries were made regarding the outcome of the job search and receipts for actual expenses were not requested.

184The Grievor suggested that there were innocent explanations for the apparent similarities between file entries. For example, she suggested that the reason that clients 5 and 6 were approved for E-SUB on the same dates was because they were friends and they might have discussed the availability of this benefit. However, although this could conceivably explain why these 2 clients were approved on identical dates in December 2006 and 2007, all of the clients were approved for an E-SUB within the same 2-week span in December 2007. Even if I were to accept the Grievor’s explanation, in my view, knowledge of the relationship between the two clients, and the implication that somehow they might have colluded in applying for this benefit, should have raised a red flag so that the Grievor was even more scrupulous in determining that they met the eligibility requirements before she approved the benefit.

185When the Grievor was asked to explain the basis for granting several benefits, she would inevitably point to something in the Directive, equivocate and, when challenged on cross-examination, fall back to either asserting that since she granted the benefit she must have seen the required documentation, that she was thinking outside the box, or she reviewed the request and exercised her discretion. In my view, the Grievor overstated the limits of her discretion. She was not asked to simply exercise her judgement and determine whether in her opinion the client needed additional funds. She was required to make that determination on the basis of explicit eligibility criteria and documentation requirements. I find that she did not do that.

186There were other similarities in these files that reinforce my conclusion that the Grievor acted deliberately and dishonestly. The Grievor had repeated and extensive involvement in all 6 of the files at issue, but only one was actually assigned to her. She explained this by reference to the clients’ inability to speak English and her fluency in the language that they spoke. Although I accept that the Grievor might have initially met these clients because of language barriers, I do not believe that it accounts for the extent of the Grievor’s involvement. The clients who testified said that they would use a family member or friend to assist, which means that they did not need to always seek out the Grievor to communicate their needs. Nor does the Grievor’s explanation address why she did not notify the ISS responsible for these clients of her actions on these files.

187The Grievor testified that she did not take any action that prevented others from accessing these client files. While this might technically be accurate, it is also disingenuous. Given the enormous caseload assumed by staff, there was no real likelihood that anyone other than the Grievor would deal with these clients so long as she was essentially taking carriage of their file. It might be reviewed during the CVP process, but they did not take place annually and there was undisputed evidence that when one of these clients was referred for a CVP, the Grievor tried to intervene and offered to do it herself. In the normal course, although unusual, I expect that she anticipated that her offer would be accepted. She could speak directly to the clients in their native language and, to someone with their own heavy work load, her willingness to shoulder some of their burden would seem heaven sent.

188There was also no indication that a CSR or MSN clerk was involved in these 6 client files. Again, this was either a result of deliberate action by the Grievor or consistent with accepted practice and the unique circumstances of these clients. All of the witnesses, including the Grievor, accepted that the CSR was generally the main point of contact for clients and that MSN clerks were tasked with collecting MSN forms and calculating the applicable benefit. Yet, almost without exception, there was no one else involved anywhere in the benefit approval process from the time that the Grievor became an acting ISS in March 2007 until the 6 files were investigated.

189The Grievor explained that there were many cases where she did not use a CSR or MSN clerk, depending on the client’s preference. She also thought that it was unnecessary to involve another staff member when she had already met directly with the client and received their documents. The evidence of other witnesses, including Ms. Perez who also acted as an interpreter, was there were only limited circumstances where they would process a benefit without a CSR or MSN clerk. The default position is to include other staff to perform their designated duties. Despite her appreciation that this was the norm, the Grievor repeatedly completed all work on these files entirely on her own.

190The Grievor also said that she had a very heavy caseload, in excess of 800 cases. She testified that she was overwhelmed and under significant stress as a result and that this contributed to errors when she entered Client 1:NP’s MSN travel claim as an ongoing benefit. Despite her contention, she frequently assumed responsibilities that should have been done by others. She did not involve her team CSR; she did not use the MSN clerk to gather documents, calculate payments or enter benefits; she asked another person designated to perform a CVP on client 1 if she could do it herself and she effectively took carriage of 5 files that were not on her caseload. In light of the Grievor’s evidence that she was overworked, I agree with the Employer that her assertion is inconsistent with her conduct.

191Finally, the last common feature in these files is that all of the clients moved from the Grievor’s old office at Wilson to her new office at Yonge at precisely the same time that she did, almost to the day. When asked about the file transfers, the Grievor said that she could not really recall all of the details, but that she tried to complete all her work before leaving. She was consequently very busy at that time and, although some of the clients might have called a few days earlier, she did not enter their request in STMD until the last day before she was transferred. She further testified that she kept a log of outstanding entries and required action in a notebook that she has kept. She did not produce the notebook or offer any other evidence to support her suggestion that the clients probably did not all call on the same day but could have called anytime in preceding 5 day period.

192The Grievor testified that she did not find it strange that 5 clients, not on her caseload, would all call within a few days, or, on her evidence, within a week of one another requesting a transfer to the same office. I have considered the evidence of those clients who testified that they requested a transfer, however, in these circumstances, I find it impossible to believe that the clients all moved at the same time, to the same office by mere coincidence. It is especially difficult in light of all the irregularities and anomalies in their files in which the Grievor is implicated.

193The circumstances surrounding the Client 2: EA’s, file transfer is especially disturbing. EA’s file was not transferred until September 27, 3 weeks after the Grievor had left the Wilson office. EA was still a client at the Wilson office and it is utterly incomprehensible that she would call the Yonge office and not her home ODSP office at Wilson to initiate the transfer. The Grievor thought that EA phoned her directly asking for her file to be transferred because “she moved in with her 87 year old mother in the downtown area”. Yet, the Grievor could not explain why EA called her. EA was not on her caseload at Wilson and would have had no way to know where she had moved or how to reach her. Furthermore, EA testified that her mother had died many years ago and that she had lived in the same location for a dozen years, except for a brief period when her apartment was being painted.

194The timing of EA’s file transfer made it highly unlikely that she would or was able to contact the Grievor after she left for the Yonge office. Coupled with EA’s testimony that her mother was dead and that she did not move, I am inexorably lead to the conclusion that the Grievor transferred EA’s file on her own initiative.

195When the 6 clients files were reviewed to determine ongoing eligibility, significant changes were made to all of them. It was determined that 2 of the clients were wholly ineligible and were disqualified from further benefits. Client 2: EA was also assessed a sizeable overpayment that she could ill afford to repay and that she found very distressing. The benefits of the remaining clients were reduced. These outcomes were in stark contrast with the provincial averages for changes to benefit entitlement after a CVP review.

196I am persuaded on the totality of the evidence and established pattern in these cases that the Grievor deliberately ignored required practices and procedures in order to maximise the amount of benefits granted to these individual clients. She knew the applicable procedures, as evidenced by her own testimony and her conduct in other files. I am satisfied that she was aware that she had not followed the required protocol and she knew she was contravening Ministry Directives. The Grievor either engaged in deliberate fraud or wilfully disregarded programme requirements to advantage a few, select clients.

197The Union argued that there were possible explanations for the anomalies in the 6 client files and that the Employer failed to follow up on exculpatory statements made by the Grievor. A number of explanations were offered, which, although purely speculative, could plausibly account for individual instances of irregularities in the Grievor’s files. Nonetheless, where some explanations might be credible if viewed in isolation, I have specifically determined that most are not credible in the unique circumstances in which they were assessed and the rest do not withstand scrutiny when examined in light of the totality of the evidence.

198There are simply too many irregularities, consistently found in only a small subset of the Grievor’s files, to be the product of random and innocent coincidence. Although exculpatory explanations might exist, none have been proven and seem highly unlikely in the overall circumstances of this case. In order to accept that the Grievor was merely the victim of a series of innocent mistakes, made by others and herself, I would have to ignore the overwhelming preponderance of evidence in this case. I do not accept that all of these irregularities, which taken in isolation might be explained, occurred for innocent reasons at the same time, in these cases only.

199I agree that it would have been preferable if management had pursued some of the explanations offered up by the Grievor at her disciplinary meeting. Their failure to do so does not, however, undermine the weight of the evidence they did adduce. The Union and the Grievor had ample opportunity to call witnesses that would substantiate her claims of innocence, but they did not. They did not call the Grievor's daughter to support her evidence regarding client 1’s grand daughter; they did not call evidence from Paul Corey regarding instances when he approved client benefits; they did not call any other ISS to support the Grievor’s entries when she was a CSR that the benefit was “approved per ISS”; and she did not produce her notebook in which she recorded client contact before entering it in STMD.

200The Union submitted that management essentially exaggerated the impact of the Grievor’s conduct. The Union suggested that the amount of benefits that should not have been paid was overstated and that despite management’s concerns, they failed to act for several months with respect to the client’s ongoing receipt of benefits. The Union further observed that only Client 2: EA, was assessed an overpayment and that this reflects a lack of certainty with respect to whether clients received benefits to which they were not entitled.

201I do not think that the Employer has overstated the impact that the Grievor’s conduct had on her clients or the Ministry. Based on the findings that I have made regarding the Grievor’s responsibility for various anomalies and irregularities in these files, I accept the Employer’s estimate that approximately $100,000 of benefits was paid without demonstrating that eligibility criteria were met. In any event, even if the Employer’s estimate was not fully accurate, I am satisfied that many tens of thousands of dollars worth of benefits were approved by the Grievor without ensuring that they should be paid.

202Nor do I consider the Employer’s actions vis a vis the clients to undermine its case. Management decided that in the circumstances, they would generally respond prospectively and not retroactively. In my view, management acted responsibly and with due regard for the hardship that the Grievor’s conduct might have on the individual clients. Similarly, the prudent course of conduct was to wait until the investigation and disciplinary meetings were complete before taking action against individual clients. It was only then that management could make a fully informed decision with respect to the level of responsibility properly attributable to the individual clients.

203The Union further argued that the failure to identify a motive for the Grievor’s conduct, coupled with Mr. Beare’s finding that there was no evidence of personal gain, diminished the cogency of the Employer’s position.

204I am not persuaded by the Union’s submissions. The lack of personal gain or demonstrated motive does not alter the essential character of the misconduct in this case. I do not know why the Grievor acted as she did. It is possible that she was motivated by her selfless desire to help these clients. Unfortunately, in doing so, she demonstrated her willingness to ignore eligibility requirements and grant benefits regardless of actual entitlement. She was not just thinking outside of the box, she stepped outside of the box and ignored the boundaries of her discretion.

205Throughout her testimony, the Grievor demonstrated that she knew the benefit approval and documentation requirements, but failed to conscientiously apply them with respect to these 6 clients. I am satisfied that she knew that she was not following the required protocol and she was aware that she was contravening Ministry Directives. Her conduct was deliberate and culpable.

206This was not a single incident of misconduct but a repeated course of conduct over many months with several clients. The Grievor was administering public funds and her position demands a high degree of trust, accountability and transparency. The programme requirements, including the need for documentation and the involvement of more than one staff member are, in part, designed to maintain programme integrity. The Grievor ignored these requirements and treated them as an unnecessary encumbrance. The depth and breadth of her actions constitute a grave abuse of her authority and breach of public trust.

207Arbitrators have consistently found that acts of dishonesty and breach of trust such as this will justify dismissal, even where there is no prior history of disciplinary action. Nonetheless, there can be mitigating factors that militate against discharge. In this case there are not.

208Although the Grievor had an unblemished disciplinary record, she was not a long service employee. She deliberately ignored essential programme requirements in granting multiple benefits, to multiple clients over an extended period of time. In administering public funds, the nature of her duties require a high degree of honesty, integrity and accountability. She has flagrantly breached those standards. Her misconduct was extremely serious and was not the result of a single error in judgement.

209The Grievor did not admit to any wrongdoing with respect to the granting of discretionary benefits and did not express remorse for the few errors that she did acknowledge. In these circumstances, where the Grievor took no responsibility for her actions and engaged in serious and wilful misconduct, there is no indication that corrective discipline would be effective. I am not satisfied that it would be fair or reasonable to interfere with the penalty imposed by the Employer.

210Ultimately, it is impossible to know why the Grievor would jeopardize her employment to the benefit of others. As I have mentioned, the lack of motive does not provide a sufficient basis to undermine the cogency or force of the evidence tendered by the Employer. All of the surrounding circumstances support the Employer’s position and are inconsistent with the evidence offered by the Grievor.

211On the basis of my review of the evidence as a whole, I am satisfied on a balance of probabilities that there is clear, cogent and convincing evidence that the Grievor acted dishonestly and in breach of the public trust when she deliberately and knowingly approved benefits without following the programme eligibility requirements and without obtaining the required supporting documentation.

212The grievance is dismissed and the discharge of the Grievor is upheld.

Dated at Toronto this 15th day of March 2011.

1In order to protect the privacy of ODSP clients reviewed in connection with this grievance, throughout the investigation clients were identified by number. At arbitration, clients were identified by name. For purposes of this decision, I will identify them by number and initials.