GSB#2010-0031

UNION#2010-0542-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hussain)

Union

and -

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

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry Ministry of Government Services Labour Practice Group Counsel

HEARING

December 1, 2010, March 31, April 11, July 13& 28, December 13 & 15, 2011, January 19, February 7, 27 & 28, June 25, July 16, September 11, 2012, January 9, 2013.

Decision

1This is the grievance of Mr. Faisal Hussain alleging that his termination on or about February 22, 2010 was without just cause. The Board last convened on January 9, 2013 to hear final argument concerning the merits of the grievance. That was in compliance with my oral ruling of September 11, 2012 which was confirmed in writing on September 26, 2012 at which time I denied a further adjournment motion made by union counsel Ms. Jane Letton. I then directed that the matter proceed to final argument on the next scheduled hearing day which had been set for January 9, 2013. That adjournment request or motion was premised on the fact that Mr. Hussain had once again failed to attend on a scheduled hearing day. The motion was declined since Mr. Hussain, as before, had failed to provide adequate evidence to justify his unavailability.

2Before proceeding to argument on January 9, 2013 we enquired of Ms. Letton, union counsel, as to whether or not Mr. Hussain might have been unaware of the continuation. Ms. Letton confirmed that she had communicated the results of the September 11^th proceedings and the September 26^th written award by several means and on several occasions and requested a response and acknowledgment. There was no direct reply from Mr. Hussain himself, however, as on an earlier occasion, his spouse responded on his behalf that he continued to be unavailable due to health related issues. Regrettably, as before, there was no medical documentation provided to substantiate his continued unavailability. As indicated earlier, the matter then proceeded to final argument. Since Mr. Hussain failed to attend proceedings after the close of the Employer’s case and also failed to provide satisfactory documentation to justify his continuing absence, we do not have the benefit of his testimony explaining the alleged misconduct for which he was terminated. We have instead only the unsworn and confusing excuses he gave to his employer. His fate must, therefore, be determined almost exclusively on the basis of the Employer’s evidence. Accordingly, what follows later will be a synopsis of the evidence heard together with my assessment of whether or not the allegations were proven and, if proven, whether just case for termination had been established. Before reviewing that evidence there are three matters which, although not technically preliminary in nature, merit consideration beforehand.

The Human Rights Code and the I.T. (Computerized Evidence) (A) Abuse of Process

3Mr. Hussain’s repeated failure to attend proceedings could possibly be viewed as an abuse of this Board’s process. In such a case, the matter might be dismissed in its entirety where there has been inadequate or unsatisfactory evidence to show that a party was legitimately unavailable or unable to attend.

4Mr. Parry did identify that issue in his submissions but reserved the employer’s rights to present argument on it in the event the decision on the merits favoured Mr. Hussain. On agreement with the Union that issue was, therefore, put in abeyance.

(B) The Human Rights Allegations

5I do not at this stage propose to deal in depth with the Grievor’s allegations of discrimination with respect to his treatment by the Employer. However, it is noteworthy that in a preliminary award of this Board dated April 6, 2011 I confirmed that “the Board here will be obliged to consider the Employer’s conduct and the Grievor’s termination in the context of potential violations of the Human Rights Code”. Furthermore, at paragraph 12 of that same decision the following Order was granted:

“The Union is directed to provide additional particulars, if any, of the Employer conduct which is alleged to have been discriminatory. Failure to do so promptly and, no later than the end of April, may impede its right to call evidence concerning matters which have not been particularized with respect to the who, when, and where of the conduct and the manner in which it is alleged to have been discriminatory”.

6In the circumstances, the Union and Grievor were given a reasonable opportunity to identify and particularize any Human Rights allegations they sought to have addressed. In due course, this award, amongst other things, will consider and dispose of those allegations.

7At the outset of proceedings it appeared that the Grievor had resiled from admissions he had made during the course of the Employer’s investigation. Those admissions related to information resident on his workplace computer, as well as the employer’s net drive and storage server which he regularly accessed and used in the course of his duties. Based upon overwhelming and uncontradicted evidence, I have concluded that the impugned use of the Grievor’s computer was attributable to him and none other for reasons which again will be addressed later in this award.

8Finally for the reasons which are fully addressed below, I have concluded that there was just cause to discipline Mr. Faisal Hussain and that termination of his employment was an appropriate response. Furthermore, there was no substantiated evidence that Mr. Hussain was singled out and subjected to discriminatory treatment relative to other employees or by reason of any of the prohibited grounds identified in the Human Rights Code of Ontario. I have, therefore, concluded that his grievance must be dismissed.

The Background and Issues

9Mr. Hussain had worked as a Financial Officer in the Family Responsibility Office (FRO) of the Ministry of Community and Social Services for approximately eight (8) years at the time of his termination. In that position, he had access to the FRO database as well as, for instance, to that of the Ministry of Transport for Ontario (MTO). Accordingly, the personal, banking and other financial information of FRO clients and other citizens was available to him as needed. Trust was, therefore, a touchstone of the employer/employee relationship. The termination letter of February 22, 2010 outlined the misconduct engaged in by Mr. Hussain and which resulted in his termination as follows:

“As you are aware, the employer conducted an investigation into allegations that you violated the Ministry Standards of Conduct, the Public Service of Ontario Act, 2006, Ontario Regulation 381/07; the Freedom of Information and Protection of Privacy Act (FIPPA); the Workplace Discrimination and Harassment Prevention (WDHP) policy and the Operating Procedures for Use of I and IT Resources.

On January 28, 2010, you attended a predisciplinary meeting to discuss the allegations that were set out in my letter to you dated January 20, 2010. I was in attendance at this meeting, as was Suzi Ardito, Manager, Enforcement Services, Heather Hanrhan, Human Resources Advisor and Jackey Powell, OPSEU representative. At this meeting you denied the allegations, indicating that you felt “mental pressure” was put on you during the investigative interview with the Forensic Investigation Team (where you agreed that you had created falsified pay stubs). You also indicated that you do not recall forwarding confidential information to a non-MCSS individual, and that you had not received training on the I and IT and WDHP policies.

Based on the findings of the fact finding exercise, the Ministry’s review of these findings, and the response that you set out above, the Ministry finds that the following misconduct has been substantiated:

You prepared falsified paystubs at the request of your manager which is a violation of the Ministry Standards of Conduct (Standard #5: Lawful and honest conduct).
You disclosed confidential MCSS documents to a non-MCSS individual which is a violation of the Public Service of Ontario Act 2006, Regulation 381/07, Section 5(1) and the Freedom of Information and Protection of Privacy Act (FIPPA).
You used Ministry resources for conducting your personal accounting tax business during government work hours which is a violation of the Public Service of Ontario Act 2006, Regulation 381/07, Section 8(1)(8) and The Information & Technology (I & IT) Operating Procedures for Use of I & IT Resources, Section 4.3.
You used government I.T. resources and government email to distribute images of an inappropriate nature, including images of a violent nature. This is a violation of the Workplace Discrimination and Harassment Prevention (WDHP) Policy, and a violation of The Information & Information Technology (I & IT) Operating Procedures for Use of I & IT Resources, Section 4.3.

After considering all the information at hand, including mitigating factors, and with the concurrence of the Assistant Deputy Minister, by the authority delegated to me under Section 44 of the Public Service of Ontario Act, you are hereby dismissed for cause in accordance with section 34 of the Act, effective immediately. You have the right to grieve your dismissal.”

In order to prove the assertions set out in the termination letter Employer counsel, Mr. Benjamin Parry, called upon five witnesses:

Mr. David Langille – a forensic specialist from the Corporate Security Branch engaged in IT forensics.
Mr. Ted Kopp – a forensic investigator, member of the Forensics Investigation Team (F.I.T.) which is associated with the Ontario Internal Audit Division.
Mr. Dan Beckman – a corporate investigator also with the Forensics Investigation Team, Ontario Internal Audit Division.
Ms. Denise Karki – Senior Manager with the Client Services Branch of the Family Responsibility Office.
Ms. Nancy Liston – Director of Client Services Branch of the Family Responsibility Office.

I do not propose to review in detail the testimony of each of these witnesses. I will, however, attempt to set out the substance of the evidence they introduced without necessarily identifying through which of the witnesses it was introduced. Notwithstanding that, it is perhaps fitting to first consider some of the testimony given by Ms. Nancy Liston, the Director of the Client Services Branch for the Family Responsibility Office. It was Ms. Liston who ultimately signed off on Mr. Hussain’s termination letter after having considered the reports made available to her by the various investigators as well as senior staff with whom she consulted.

10Ms. Liston testified that Ms. Hussain was not a target of the original investigation. Rather, the existence of a computer blog which proved to have been hosted by a member of the Family Responsibility Office had been brought to the attention of management. Apparently the blog came to be a forum for inappropriate, demeaning and critical comments concerning staff as well as managers within the Family Responsibility Office. Amongst others, the Grievor’s immediate manager Mr. Osmand Bangura was implicated in the blog and subsequently investigated. The forensic IT investigation of Mr. Bangura, and in particular, his workplace computer activity led to concerns about communications between him and Mr. Hussain. That in turn led to a forensic investigation of Mr. Hussain himself. Those connections or the string of connections leading to Mr. Hussain started with a Mr. Aboutaeib who was employed in the Client Services Branch of the Family Responsibilities Office. Mr. Aboutaeib had a business relationship with the Grievor’s manager, Mr. Osmand Bangura. That business, Freedom Mortgage Financial Solutions (FMF Solutions) was a mortgage brokerage operation, unrelated to the work of those two with FRO. Mr. Aboutaeib had been found to be a moderator of the inappropriate blog and his business connection with Mr. Bangura led to an investigation of the two. Ultimately the IT investigation of Mr. Bangura disclosed communications with Mr. Hussain involving the mortgage broker operation. The chain of relationships led to a thorough investigation of Mr. Hussain within the workplace which began with an IT forensic investigation of his computer including his e-mail correspondence and network drives and connections.

11Mr. David Langille was responsible for the IT examination of a number of employees, in particular, Mr. Hussain. From the data he acquired he prepared a report for management outlining his findings. He testified at length concerning those. Since there was no significant challenge either to his credentials or his methodology and, indeed, to the sources of the data he collected, I have simply reproduced below the substance of his report. However, those findings should be viewed in the context of the functions of the Family Responsibility Office and its duty of care and privacy to its clients.

12Essentially, FRO acts as a type of clearing house which oversees the flow of family support payments from one spouse to another in respect of both spousal and child matters. It is FRO’s function to ensure that Orders made by the courts and domestic support agreements which have been filed with the courts are enforced. In that capacity, FRO and its staff have access to and indeed records of private financial information of its client Payers and Payees including their personal bank accounts, addresses, birth dates and even drivers’ licences. In the circumstances, FRO officers are trained in matters of privacy and confidentiality. Policies and Procedures with respect to privacy and confidentiality are always available from workplace computers with the click of a mouse. When opened, the first computer screen flags these links. Additionally, FRO officers such as Mr. Hussain who have access to private and confidential information are obliged to swear or affirm an Oath of Office and Secrecy with respect to information and documents coming to them by reason of their office as a civil servant. In the case of Mr. Hussain himself, as a financial officer he had access to this private and confidential information through the Ministry’s “MECA” system. In particular, as and when amendments were made to Support Orders by the Courts it would be within Mr. Hussain’s duties to enter that program and make the appropriate changes.

13In addition to the Policies regarding confidentiality, employees are instructed concerning involvement in work or businesses outside their duties for the Ministry. While the restriction on such activity blankets all forms of work, special dispensation or permission to be so engaged is also available in the discretion of the Ministry. However, in order to obtain such permission a formal application must first be filed following which, if appropriate, consent will be granted.

14With those considerations in mind, I have reproduced below the Report provided by the Corporate Security Branch in respect to the forensic IT investigation conducted by Mr. David Langille:

Overview

On April 8^th 2009, IT Forensics was requested by the Ministry of Community and Social Services to initiate an investigation into the IT activity of Mr. Faisal HUSSAIN, based on the results of an internal investigation.

More specifically IT Forensics was requested by Ms. Trinela CANE to investigate Mr. Faisal HUSSAIN with regards to inappropriate use of Government of Ontario IT resources.

This document provides a description of the sources of forensic data and related findings of evidence.

Sources of Forensics Data

Forensic data used in this investigation and analysis was retrieved from the following sources:

One(1) Workstation HSCPFRODT00094, 142.107.98.183; Evidence Number CSB09-002-41
One (1) Email account for Mr. Faisal HUSSAIN as of April 29^th 2009; evidence number CSB09-002-42
One (1) Network Drive – hussaif as of May 25^th 2009; Evidence Number CSB09-002-43
Webfilter Reports for March 2^nd 2009 to April 24^th 2009; Evidence Number CSB09-002-44
One (1) Network Drive – hussaif as of March 31^st 2009; Evidence Number CSB09-002-45

Findings

A forensic examination, using specialized software, of the acquired data resulted in the following findings:

Creation of Fraudulent Pay Stubs

Emails

Afsan Begum

On December 13^th 2007 Mr. Faisal HUSSAIN sent a pay stub for “Afsan Begum” to Mr. Osmand BANGURA.
On December 17^th 2007 and December 18^th 2007 email conversations showed a planned real estate transaction where Mr. Faisal HUSSAIN was selling his property to Afsan BEGUM, who was in turn using Mr. Osmand BANGURA as the mortgage broker.

Alysse A BENNETEAU

On October 1^st 2008 Mr. Faisal HUSSAIN received an email From Mr. Osmand BANGURAA (osmand@fmfsolutions.com) with the subject “NEED A FAVOUR”. The request was for a pay stub for Alysee A. Beneteau”, with salary, SIN, employer and position information provided. On October 2^nd 2008 Mr. Faisal HUSSAIN sent an email to Mr. Osmand BANUGURA (osmand@fmfsolutions.com) with the completed pay stub. (PAYROLL aLYSSE.xls)
On October 3^rd 2008 three emails were exchanged regarding the formatting of the pay stub.

Fidela AMURAO

On October 7^th 2008 Mr. Faisal HUSSAIN received an email from Mr. Osmand BANGURA (osmand@fmfsolutions.com) with the subject “Another Favour Please.” The Request was for a pay stub for Fidela AMURAO; with SIN, DOB, home address, salary and employer information provided.
On October 7^th 2008 Mr. Faisal HUSSAIN replied to Mr. Osmond BANGURA (osmand@fmfsolutions.com) and attached a pay stub for Fidela AMURAO (PAYROLL .fidela.xls). A thank-you reply from Mr. Osmand BANGURA was received on the same day.

Network Files

There are 5 Excel files, containing pay stub information for the individuals referenced above, in his Network drive with modified dates between December 12^th, 2007 and October 7^th 2008.

Personal Business

Mr. Faisal HUSSAIN has been doing financial work for various companies and clients since October 3, 2005.

o There are 72 emails with 186 attachments (Excel, Word and PDF files) related to this work, with dates between October 3^rd 2005 and April 23^rd 2009.

o There are 19 temporary internal files (Excel files and web pages) with modified dates between November 12^th 2008 and April 28^th 2009.

o There are 7 Excel and Word files in his Network drive with modified dates between December 29^th 2005 and June 2^nd 2008.

o Internet history shows access sites that may be related to his Personal Business.

March 3^rd 2009 – corporationscanada.ic.gc.ca
March 23^rd 2009 – corporationscanada.ic.gc.ca
March 25^th 2009 - – Canada Revenue Agency
March 31^st 2009 - – Canada Revenue Agency
April 6^th 2009 – Canada Revenue Agency

Deleted Documents

Between March 31^st 2009 and April 29^th 2009, Mr. Faisal HUSSAIN deleted 66 documents related to the fraudulent pay stubs and his personal business. Lnk files in his “Recent” folder show that he last access 4 of these files on April 23^rd 2009 between 2:51pm and 3:00pm suggesting that the files may have been deleted at this time.
On April 23^rd 2009 between 10:43 and 11:01, Mr. Faisal HUSSAIN sent 4 emails to his personal email account (faaysal@hotmail.com), containing attachments and information related to his personal business activities.

Mr. Langille during his testimony took us through a myriad of documents including e-mails and documents accessible on and from Mr. Hussain’s work computer. The following represents a brief elaboration of the findings in that report based upon Mr. Langille’s evidence:

In December of 2007, Mr. Osmand Bangura, the Grievor’s direct manager in the FRO office, was running a mortgage brokerage business. Mr. Bangura asked the Grievor Mr. Hussain to create a pay stub for an individual named Afsan Begum. Mr. Bangura provided the information for the payroll record including the name of the employer, Express Law Services, as well as the annual income to be displayed. Mr. Hussain was to create the payroll record or records showing the usual deductions etc. for tax and other purposes. Mr. Hussain accommodated the request using an excel spread sheet and a format identical to that used by the Ministry for its own employees. Of course the record in this case reflected Express Law Services rather than the Province as the employer. In any event, subsequent correspondence via e-mail indicated that the mortgage loan being brokered by Mr. Bangura related to the potential purchase by Mr. Begum of the Grievor’s own home. When the mortgage application failed with the financial institution, so too did the potential sale to Mr. Begum of Mr. Hussain’s home. Notwithstanding these records, there was no evidence as to whether or not Mr. Bangura had submitted the payroll record created by the Grievor to any financial institution or bank in support of a mortgage application for Mr. Begum
The second payroll record requested by Mr. Bangura for Ms. Alysse Beneteau was almost a year later in October of 2008. The employer was to be set out as the Ontario Dental Institute and reflected an annual income of $148,000. Again Mr. Hussain prepared the requested payroll record and complied with a subsequent request to alter the document so that it appeared to be more authentic than in the original format.
Shortly thereafter again in October of 2008 a similar request was made by Mr. Bangura on behalf of Fidela Amurao. In this case Ms. Amurao herself was a FRO employee working in the same office as Mr. Hussain. Notwithstanding that, the payroll record was to reflect her employer as Freedom Mortgage Financial Solutions, that is Mr. Bangura’s own brokerage, and reflect an annual salary or income of $75,000.
Again, as in the case of the payroll record of Mr. Afsan Begum, there was no evidence as to whether or not the payroll record for Ms. Beneteau was used to support a mortgage application with a financial institution. On the other hand, subsequent inquiry by another investigating officer whose evidence will be referred to later did confirm with a lending institution that it had received the payroll record prepared by Mr. Hussain for Ms. Amurao in support of a successful mortgage application.

15With respect to those findings and the others made by Mr. Langille and referred to in his Report, they were canvassed with Mr. Hussain himself in an interview conducted by Mr. Dan Beckman, a Court Investigator and member of the Forensic Investigation Team of the Ontario Internal Audit Division. That team was appointed to complete the investigation concerning, amongst others, Mr. Hussain. That interview took place on August 7, 2009 at which time Mr. Hussain had available a union representative, Ms. Jacquelyn Powell. A transcript of that interview was admitted into evidence upon agreement of counsel. I do not propose to reproduce that transcript here except to note that there were acknowledgments by Mr. Hussain that he was the author of many of the e-mails and other documents discovered and reported by Mr. Langille. On the other hand, Mr. Hussain initially denied any knowledge of the purpose for which those documents were needed. Mr. Beckman gave direct evidence concerning the interview of Mr. Hussain including a review of the transcript.

16The lead investigator from the Forensic Investigation Team (FIT) was Mr. Ted Copp. As project lead Mr. Copp reviewed all reports including that prepared by Mr. Langille together with all the documents he had reviewed as well as the transcript of Mr. Hussain’s interview. Under his guidance as FIT project lead in this investigation a report was prepared and issued in November of 2009. A copy, of course, was provided to Ms. Nancy Liston the Director of the FRO office who signed off on Mr. Hussain’s termination as referred to earlier in this award. The Report prepared by the FIT office incorporates the findings made by Mr. Langille and responses made by Mr. Hussain during his interview as reflected in the transcript introduced at the hearing. I have considered Mr. Copp’s testimony concerning that Report and his findings in the context of the evidence introduced by Mr. Langille and that of Mr. Beckman and I am satisfied that the FIT Report fairly reflects the information which was taken into consideration, examined and formed the substance of that Report. Of course, that Report reflects the information gathered from the interview of Mr. Hussain by Mr. Beckman since he and Mr. Copp are members of the FIT team. The Report describes the full extent of the FIT investigation under the heading Methodology as follows.

Page 5 – 1.2 Methodology and Investigation Involved: The Investigation Involved:

Review draft report findings of Corporate Security Branch, IT Forensics
Conduct a desk/office search
Assemble documentation relevant to the allegations pertaining to the subject staff
Analyze information/date
Interviews with FRO staff for purposes of obtaining additional information
Prepare for interview with the subject staff (includes co-ordination and consultation with IT Forensics)
Interview subject staff, document and analyze additional information obtained from interview
Corroboration of information obtained as a result of the interviews

17Of course, the IT investigation referred to above was that conducted by Mr. David Langille and the interview was that conducted by Mr. Beckman. Additionally, a search was also conducted of Mr. Hussain’s work area including his desk and its contents. Taking that evidence in its entirety including in particular the interview of Mr. Hussain the following elements were particularly informative:

Mr. Hussain acknowledged during the interview having prepared the pay stubs or payroll records for each of the three individuals referred to earlier in this award.
Mr. Hussain originally protested that the documents he had prepared were simply calculations for information purposes in response to a specific request from his manager. He did not know the purpose for which the information or payroll record was to be used.
Mr. Hussain ultimately conceded that the first set of documents were to assist Mr. Begum, a client of his manager’s mortgage brokerage business, to qualify for a mortgage loan in order to facilitate the purchase of the grievor’s own home. Otherwise, Mr. Begum’s income would not have been sufficient for him to qualify for the necessary amount. I should note here that, although Mr. Hussain later denied these admissions, the e-mail exchange in December of 2007 between Mr. Bangura, Mr. Hussain and finally a Remax real estate agent together with the attachments, albeit circumstantial, were themselves probative of the salient elements involved in that transaction and the need for those pay stubs.
There was no evidence that the payroll record prepared by Mr. Hussain was in fact used by Mr. Bangura in support of the application by Mr. Begum for a mortgage loan. As luck would have it, that initial application failed as did the sale of Mr. Hussain’s home at that time.
In October of the following year, that is 2008, Mr. Bangura again presumed upon Mr. Hussain to prepare payroll records for two other individuals. Although Mr. Hussain again in his interview claimed that he did not know the purpose of those documents, his denial can hardly be considered reliable in the face of the earlier transaction involving his own home. Furthermore, one of the latter two mortgage applicants, Fidela Amurao was a co-worker of the Grievor in the FRO office. Although she was engaged in different duties than Mr. Hussain, her work station was but a few desks away from his. It was surprising that he would have claimed, as he did in his interview, that he really did not know for whom he was preparing a payroll record at the time. Indeed, it was even more surprising that he would not have considered the matter suspicious when the annual earnings on the statement, prepared ostensibly on behalf of Mr. Bangura’s own mortgage company as employer, was for an amount of $75,000. Additionally, Mr. Copp investigated further and, having identified the lending institution subsequently received an e-mail from an official there. The official confirmed that the institution had received the financial information prepared by Mr. Hussain in support of a mortgage application and, the loan to Ms. Amurao had been approved.
In addition to the foregoing there was, in password-protected memory accessible only to Mr. Hussain, a multi-year history of business documents relating to and prepared on behalf of numerous business entities. There were, for instance, applications for incorporation and, in some cases instructions on how to file business documents with agencies of Government. There were also year-end financial statements as well as annual corporate returns. While Mr. Hussain indicated that he did this work and prepared this material only for friends and family and not for financial gain, there was among the various documents an invoice issued by Mr. Hussain to at least one of the various entities for services rendered. None of the principles of the various entities had names similar to Mr. Hussain.
Finally, there were two video clips received by Mr. Hussain which he subsequently forwarded on to both his own home e-mail address as well as that of his wife. One of those videos was considered offensive since it displayed graphic violence against women. The other was found offensive since it sought to equate Israeli conduct with that of Nazi Germany.

18The FIT Report, in addition to findings made by Mr. Langille elaborated on some of those findings and added certain other relevant facts. Among those were the following:

The FIT investigation in its analysis of the IT Report and attachments clarified that there were e-mails and documents extraneous to Mr. Hussain’s FRO work commencing as early as October 2005 and ending on April 23^rd, 2009.
Internal usage by Mr. Hussain for the brief period from March 2^nd, 2009 to April 24^th, 2009 indicated a total of 1,012 minutes of internet access extraneous to FRO work. “Generally some internet usage occurred each working day, to a maximum of 75 minutes in one day (April 6, 2009). The total usage equates to an average of approximately 26.6 minutes per day”. That usage did not include any time spent on his work computer composing and completing the documents discovered.
Aside from the Oath of Secrecy signed by Mr. Hussain in 2002 and the annual reminders to staff to review the current policies which included those regarding confidentiality, on July 10^th, 2008 the FIT Report recorded that a memorandum had been issued to all staff by the Deputy Minister which detailed “the responsibilities and expectations for public servants having personal or pecuniary interests that could raise an issue under the COI Rules, to notify the Deputy Minister of any conflict of interest situation, whether it be potential, perceived or actual.”. That memorandum referred employees to the conflict of interest rules and the website where they could be accessed. It clarified that employees were “restricted in respect of employment or engagements outside of our employment with the OPS”. It went on to clarify that staff “have a clear obligation under the PSOA to notify me, in my capacity as the ethics executive, if you have personal or pecuniary interests that could raise an issue under the rules”.
Notwithstanding his apparent commercial business during working hours, there was no evidence that he attempted to notify the Deputy Minister of his activities or to seek approval for that conduct.
With respect to the dissemination to non-FRO employees of confidential information, the FIT Report noted that Mr. Hussain had accessed the confidential information of two FRO clients which he shared with Asim Afzal a non-FRO employee. Mr. Afzal had, himself, been seeking to apply for employment with the FRO Office and had sought support and information from Mr. Hussain. Mr. Hussain was familiar with Mr. Afzal not only as another potential purchaser of his home in 2007 but also as a client for whom he had prepared business documents which were discovered during the IT investigation. Additionally, the FIT team in searching Mr. Hussain’s desk had found documents containing contact information for acquaintances which included Mr. Afzal.
Although access to the private information made by Mr. Hussain was legitimate and done during the course of his regular duties, the disclosure and transfer of that information to Mr. Afzal was contrary to his Oath of Secrecy amongst other things.

19Prior to his termination Mr. Hussain was given notice of a pre-disciplinary meeting. He was advised of the various allegations which would be the topic of discussion and chose to reply to those in advance in writing. His reply included the following elements:

Amongst other things, while he had acknowledged preparing and e-mailing the various payroll records which had been identified during his interview, he now chose to disclaim any recollection of having prepared the many payroll stubs or records which he had initialled during the interview.
At the same time, and in marked contradiction, he asserted that the payroll records had been “made only for the calculation purposes which was requested by my manager. The document was prepared in the Excel Worksheet and Ministry software was not used for this purpose”.
Essentially Mr. Hussain seems to have been reverting to his original position in the interview which was to deny that he knew the purpose of the payroll records which he had prepared and that the extent of his work was simply to perform calculations in compliance with instructions from his manager.
With respect to his having provided confidential information to a non-FRO person, Mr. Hussain had no recollection whatsoever of having done so.
With respect to the allegation that he had been conducting a commercial business during work hours with government equipment, Mr. Hussain asserted that he was not engaged in such a business for financial gain and that he, in any event, was not doing accounting or tax work on government equipment.
Furthermore, he denied having had any training or been notified of the government policy regarding the improper use of information technology and/or the confidentiality requirements with respect to personal information retained by FRO with respect to its clients.
Finally with respect to the inappropriate videos which he had received and forwarded to his home computers, Mr. Hussain again took the position that he had no training with respect to workplace discrimination policies and that in any event he had not or could not recall distributing any inappropriate images.

The Human Rights Complaint

20As indicated in an earlier interim award concerning Mr. Hussain, the matter before me also encompasses his allegations that he had been discriminated against contrary to the Human Rights Code of Ontario. In compliance with my order at that time, the union did provide particulars of those allegations. Additionally, the Board was provided with a copy of Mr. Hussain’s complaint which had been filed with the Ontario Human Rights Commission.

Each of the several employer witnesses who testified were available and to a greater or lesser extent were examined by employer counsel and cross-examined by union counsel with respect to those allegations. In particular, we heard from Mr. Langille and Ms. Liston as to the original investigation into the creators and moderators of the inappropriate blog and the chain of contacts from that blog to members of FRO including Mr. Hussain’s manager and ultimately to Mr. Hussain himself.

21In addition to that, Ms. Liston testified concerning several individuals identified by the Grievor and alleged to have been running businesses or involved in work outside their FRO duties. Ms. Liston confirmed that in each case with which she was familiar the individual had sought and received approval from the Deputy Minister for that work. In no case was there evidence provided of any individual who had not applied for and received the appropriate clearance from management. Furthermore, there was no evidence whatsoever that any of them had or were conducting work or businesses outside of their FRO duties during regular FRO working hours.

The Discussion Computer Piracy

22The first issue to be determined is whether or not the Grievor himself was responsible for the myriad of documents and e-mails discovered through his computer. To put it another way, did some other person or persons without Mr. Hussain’s knowledge have access to his computer.

There are any number of reasons most of which were identified by Mr. Parry for the Employer, as to why it must be concluded that Mr. Hussain himself was the author of the material. To make that determination the following elements must be considered:

Mr. Hussain never identified another FRO worker who might have had regular access to his computer or to whom he provided his password from time to time. Furthermore, there was no evidence or even any suggestion from Mr. Hussain or the union as to why a co-worker might have chosen to use Mr. Hussain’s computer to perform the tasks in question. No other employee complained that someone had gained access to and improperly used their computer.
During his interview Mr. Hussain had admitted to having authored the various e-mails as well as the payroll stubs which were attached. His later attempt to retract his admissions with respect to having prepared documents he had initialled, was at the same time, a contradiction of his renewed contention that he had prepared them on the request or direction of his manager. Regardless of whether or not that explanation is credible, it was clear that Mr. Hussain himself was the author of all those documents which he exchanged via e-mail with Mr. Bangura, his manager. Additionally, of course, his excuse that his manager had provided all the information and that he had simply done the calculations to show tax and other payroll deductions also confirmed his authorship.
Aside from his qualified admissions, there were elements involving the use and access to his computer which suggested that Mr. Hussain and no one else had access to it. For instance:

(a) the computer is password protected;

(b) the password expires every 90 days and must be renewed;

(c) the exchanges involving payroll stubs occurred during a series of exchanges primarily between Mr. Hussain and Mr. Bangura over a number of days in December of 2007 and then again over an extended period of time with respect to the second set of documents in or around October of 2008. Although Mr. Hussain might have left his open computer unattended from time to time while going for coffee or lunch for instance, it would be more than surprising that another person could have authored these e-mails and followed up on them in a timely fashion without regular and uninterrupted access. At no time has Mr. Hussain volunteered that he shared his password or any of its replacements from time to time with any other person. Neither did he contend or report that on returning to his computer from time to time he saw someone using or leaving his desk. Nor did he report having found unknown material on his computer.

The payroll records he created were not simply resident within his e-mail account but had been created within his hard drive and stored within the government server for several years. Surely if someone else had improperly accessed his computer Mr. Hussain would have become aware of that improper activity and taken steps to put an end to it.

23In the circumstances, I am satisfied and find that Mr. Hussain was indeed the author of the various e-mails and payroll stubs referred to in the reports prepared by Mr. Langille and the FIT Team. Furthermore, for similar reasons it is clear that the commercial documents prepared over an extended period of time from 2005 through to 2009 were authored by Mr. Hussain himself. In addition to the foregoing, and again for similar reasons regarding the nature of the exchange and the password protections and accessibility issues, I am satisfied that the exchange between Mr. Hussain’s computer and that of his acquaintance Mr. Asim Afzal authored by no one but the Grievor himself. Furthermore, in doing so it was clear that Mr. Hussain did indeed access the FRO MECA account containing confidential information of clients. Although his access was legitimate, his conduct in transferring that data to Mr. Afzal was a direct violation of his Oath of Secrecy with respect to the confidential nature of clients’ information. This now brings me to consideration of Mr. Hussain’s culpability with respect to the various transactions and material on his computer.

The Pay Stubs

24The first series of pay stubs requested by Mr. Bangura identified Mr. Afsan Begum who according to the payroll record was an employee of Express Law Services for immigrants etc. It reflected an annual gross pay of approximately $100,000. As indicated earlier in this award, it was clear from the series of e-mails and in particular that from the ReMax real estate agent that Mr. Begum was a potential purchaser of the very home owned by Mr. Hussain. Furthermore, Mr. Bangura was the mortgage broker assisting Mr. Begum in his search for mortgage financing to complete a purchase of the home. The purpose for which Mr. Bangura sought the payroll record was to support a mortgage application to be made on behalf of Mr. Begum to a financial institution. Since there was no dispute that the home in question belonged to Mr. Hussain himself and that Mr. Bangura, aside from being the Grievor’s FRO manager, was operating a mortgage brokerage as Freedom Financial Services, the nature of the transaction and the need for the payroll record for Mr. Begum can easily be gathered from the exchange of e-mails. Accordingly, it is clear that Mr. Hussain, a financial officer, would have recognized that the purpose of the payroll record requested by Mr. Bangura was to support a mortgage application made on Mr. Begum’s behalf with respect to the potential purchase of Mr. Hussain’s home. There was no evidence that Mr. Begum worked for Express Law Services or that Mr. Hussain or Mr. Bangura had authority from that organization to prepare a payroll record reflecting annual income of that amount for Mr. Begum. Indeed, Mr. Hussain during his interview acknowledged that neither he nor Mr. Bangura worked for that organization. Accordingly, it is doubtful that the pay stubs were themselves legitimate and fairly reflected income earned by Mr. Begum from that organization. Furthermore, it is probable that Mr. Bangura intended to use the documents to support his mortgage application. Indeed, although he later denied this knowledge, during his interview Mr. Hussain confirmed that Mr. Begum’s regular income was not enough to support the mortgage application; hence, the need for these payroll records. However, there was no evidence as to whether or not these documents were actually used by Mr. Bangura with respect to a mortgage application on behalf of Mr. Begum. The evidence indicated only that the mortgage application was unsuccessful such that the sale of Mr. Hussain’s house could not proceed at that time. Accordingly, there was no direct proof that a fraudulent transaction had been attempted or taken place. Notwithstanding that, it was clear that there was a scheme here designed by Mr. Bangura and participated in by Mr. Hussain to secure a mortgage loan which would not otherwise have been available but for this series of payroll records created for Mr. Begum. Furthermore, since it was his own home which was to be the subject of the mortgage and the real estate transaction, the Grievor must have been a knowing participant in the scheme. He was not as he protested simply performing calculations for an unknown purpose at the request of his manager. Although there was no evidence that the documents he prepared were used for fraudulent purposes, they were certainly crafted for and made available to Mr. Bangura for such purposes. Finally, although the Begum mortgage transaction did not come to fruition, another for Ms. Amurao was successful in or about October of the following year.

25The third set of payroll documents prepared by Mr. Hussain at the request of Mr. Bangura identified the employee as Fidela Amurao, another FRO employee whose desk was not that far from that of Mr. Hussain. In this case, the purported employer was Mr. Bangura’s own Freedom Mortgage and Financial Solutions Corporation. The payroll records were prepared on the premise that Ms. Amurao earned a gross income of $75,000 per year. As at the end of September her year to date gross salary was shown as approximately $57,700.00 dollars. With respect to these documents, during his interview Mr. Hussain claimed that he did not know that this Fidela Amurao was one and the same person who worked for FRO. He said that he asked the same question of Mr. Bangura who told him not to worry about it and simply do the calculations. Taking into consideration that Mr. Hussain and Ms. Amurao worked in the same office and that Mr. Bangura was a manager there, it is beyond belief that Mr. Hussain would not have realized that this was indeed one and the same Fidela Amurao who worked in that office. In any event, Mr. Hussain did not inquire as to whether or not the Fidela Amurao on these payroll records was employed by Mr. Bangura’s mortgage company. Rather, he prepared the documents in accordance with Mr. Bangura’s request. In view of the earlier transaction involving his own home, I have no hesitation in finding that Mr. Hussain knew the intended purpose of the payroll records which he had been asked to prepare. He must have recognized that they were, as in the case of the sale of his own home, required to support a mortgage application. Mr. Copp, the FIT team investigation leader, testified that he had received confirmation from the financial institution that it had approved and granted a mortgage loan to Ms. Amurao based upon these very payroll records. That confirmation was, of course, of a hearsay nature and cannot be relied upon to confirm a fraudulent transaction to which Mr. Hussain was privy. However, it does lend credence to the Employer’s concern that its employees were engaged in fraudulent activities.

26Whether or not any of the material prepared by the Grievor was actually supportive of a fraudulent transaction, I am satisfied in all the circumstances that Mr. Hussain, a person skilled in financial matters, would have known or ought to have known that the purpose of the payroll records he had prepared was to support mortgage loan applications. Furthermore, common sense dictated that had the named payee been a legitimate employee of the identified employer, he or she could have and should have obtained the necessary income confirmation directly from his or her employer. That Mr. Hussain would not have recognized the real purpose of these records and that they were most probably false is simply not believable. It is, therefore, my finding that Mr. Hussain was engaged in conduct as a participant in a scheme with this manager, Mr. Bangura, which might have involved a fraudulent misrepresentation to one or more financial institutions. The preparation of those documents was, therefore, in and of itself inappropriate especially since those documents were resident on government servers and were exchanged through the Grievor’s computer and during working hours. That Mr. Hussain engaged in that conduct knowing the likely purpose for which the material would be used was in and of itself culpable conduct. That a financial officer working in the FRO offices wherein integrity of service and that of employees must be of paramount importance, should engage in such activity is simply untenable. Had any transaction gone bad after coming to fruition and subsequently attracted media attention, the embarrassment to the FRO office would have been significant. This work performed by the Grievor outside of his regular duties conflicted with the duty of integrity to which he owed his employer. His interests were in conflict with those of his employer and even more so because his activities in this regard were performed in part during working hours and on FRO equipment. It was, therefore, grave misconduct worthy of significant discipline.

Mr. Hussain’s Commercial Business

27As indicated in the IT Report by Mr. Langille and expanded in the FIT Team Report, there was significant corporate and financial data stored on and through Mr. Hussain’s computer in his password protected government files. These documents were dated from as earlier as 2005 and ran up to April of 2009. The IT Report from Mr. Langille indicated that an attempt was made probably in April of 2009 to delete approximately “66 documents related to the fraudulent pay stubs and his personal business”. That extensive time frame and the sheer number of transmissions back and forth between his home computer and his work computer make it clear that it was Mr. Hussain himself who was engaged in these activities. As to Mr. Hussain’s explanation concerning the business documents which included such things as financial records and incorporation applications, Mr. Hussain claimed during his interview that he performed these tasks only for friends and family and not for financial gain. Of course, we have only Mr. Hussain’s assertion to that effect during his interview and no testimony to confirm that information. A review of the documents and the correspondence concerning this material indicates that none of the contacts and persons for whom the work was performed had the same surname as Mr. Hussain. Additionally, there was at least one invoice for services performed by Mr. Hussain within the resident documents. Finally, whether he was performing this work for gain or not and whether or not much of the work was performed on his home computer, he had been devoting significant work time to handling these tasks and this material from his work computer. As indicated earlier for March 2, 2009 to April 24, 2009 an average of one-half hour per day was devoted to internet access relating to these matters, which were not in any way related to his FRO duties except in so far as the work fell within his skill competencies and were commercial or financial in nature. The Grievor claimed he was performing this work for friends and family for free and simply to keep up those skills which he enjoyed but which he did not require or exercise during his FRO duties. Be that as it may, on any number of occasions the work on these documents appear to have been performed on and resident within his government equipment since it was subsequently e-mailed to his home computer. This suggests that some of the work, aside from the internet access alone, was performed at his FRO work station and upon completion sent to his home computer. In summary, there were at least three problems regarding this material:

It was a substantial body of work spanning several years all of which was resident on government equipment;
Whether or not much of the documentation was prepared at his work station or at home, Mr. Hussain devoted a daily piece of his FRO work time to these extraneous financial matters;
Whether for financial gain or not, Mr. Hussain was engaged in commercial work extraneous to his FRO duties and for which he had neither notified his manager nor sought approval to perform during non-working hours let alone on government paid time.

With respect to Mr. Hussain’s explanation or excuse that he had not been trained on the proper use of IT equipment and/or that he was not aware that his activities for “outside clients” was a violation of FRO policies, it does not stand up for several reasons:

Common sense dictates that employees would realize that engaging in another form of work or activity such as that engaged in by Mr. Hussain during paid FRO working hours would be inappropriate and indeed a conflict with ones duties to his employer;
The Policy restrictions with respect to the use of Ontario government IT resources such as Mr. Hussain’s computer and related equipment was always available and indeed flagged with a daily pop up on his computer. That Mr. Hussain might have failed to respond to notices provided by management to review and consider the posted information is not an excuse for his ignorance. The Notice, although not referred to earlier in this award provides in part as follows:

Government of Ontario Information Technology (IT) Resources are to be used exclusively for government business unless otherwise approved by your manager. This includes computers, laptops, e-mail, internet, extranet, personal digital assistants, etc. Examples of inappropriate use of government IT resources include: 1. Accessing, displaying, downloading, creating, distributing or storing any software, graphics, images, texts, music, video or other data (including e-mail messages and attachments) which are:

offensive
not required for government business
prohibited from downloading due to copyright or other legal prohibitions.

Excessive use of government resources (e.g., unnecessarily downloading videos, music and large files from the internet)
Operating a private business or using these resources for personal gain.
Using these resources to discriminate against or harass other employees
Using these resources to create a hostile or humiliating work environment
Using these resources to conduct illegal activity.

28Whether or not Mr. Hussain took the time to review this notice and the linked policies and procedures, he did so at his own peril. Furthermore, to devote a significant portion of each work day to those matters clearly conflicted with his duty to his Employer which was paying him for that time. In the circumstances, I find that this activity too constituted culpable conduct by Mr. Hussain over an extended period of time. At least as significant was the fact that Mr. Hussain did not acknowledge that engaging in those activities during work hours and, in any event, without the approval of his manager was improper nor did he offer any apology for having done so. In effect, Mr. Hussain has yet to take ownership of his wrongdoing with respect to these activities. Additionally, rather than acknowledging that his conduct was improper, Mr. Hussain tried to deflect responsibility by alleging that others were engaging in similar activities with impunity.

Sharing of Confidential Information with a Third Party

29In March of 2008 there was a series of e-mails between a Mr. Asim Afzal and Mr. Hussain. Mr. Afzal was interested in an upcoming exam with respect to his being an applicant for a position in the FRO offices. He sought Mr. Hussain’s counsel and information to better position himself as an applicant. In the course of the exchange, Mr. Hussain provided internal FRO documents and precedents available for the guidance and use by FRO officers in the fulfillment of their day to day duties. Additionally and more importantly, Mr. Hussain in an e-mail to Mr. Afzal provided confidential client information concerning a case Payer and a case Payee which was accessible only to FRO officers through the government’s MECA system. That is a carefully governed system which is password protected. Furthermore, any employee accessing the MECA system leaves behind an identifiable footprint so that the access can be traced to him or her should the need arise. The material conveyed to Mr. Afzal identified the actual FRO case number as well as the two client’s names that is the Payer and Payee. The information transferred shows the opening balances and a series of deposits and transfers in and out regarding support payments. Similar account information for approximately a month and a half from the payee’s account were also provided.

30Although Mr. Hussain had been informed of this accusation, in his pre-disciplinary memo to Ms. Liston he claimed that “the document that I prepared (as I recall) was a draft, which was done on the Excel Worksheet. I do not recall forwarding or presenting any confidential document to any non-MCSS individual.”

31Since Mr. Hussain denied any such conduct, Mr. Parry for the Employer identified a number of reasons to confirm that it was indeed Mr. Hussain who authored the e-mails and accessed the MECA system to retrieve the information which was then forwarded to Mr. Afzal. These included the following:

The information that is, the e-mails, were found on Mr. Hussain’s password protected computer.
The initial request from Mr. Afzal was on March 27^th at approximately 9:30 p.m. Mr. Hussain responded to that at approximately 9:15 a.m. March 28^th inviting Mr. Afzal to “please give me a call, I could explain you about the exam…”. The invitation to have Mr. Afzal call him confirms that it was indeed Mr. Hussain who had responded on this occasion and that the two were acquainted. Furthermore, at approximately 10 a.m. Mr. Hussain forwarded the FRO corporate documentation to Mr. Afzal while signing the e-mail “Faisal”. Additional e-mails at approximately 4 p.m. that same day included the confidential information referred to earlier. Further, it was confirmed that Mr. Hussain had left a footprint in the MECA system when he accessed the accounts of the two clients on the same day that this exchange took place with Mr. Afzal. And finally the desk search of Mr. Hussain’s work station turned up a telephone directory wherein Mr. Asim Afzal was a contact. In all the circumstances, it was clear that it was Mr. Hussain himself who was the party to the e-mail exchange with Mr. Afzal.

32In the circumstances, it was clear that Mr. Hussain had shared confidential password protected FRO client information with a third party. That was in itself a direct and significant violation of his Oath of Secrecy which he executed in 2002. In any event, again as in the case of the time he devoted to financial work outside his FRO duties, common sense would dictate that client information which was so carefully protected ought not to be shared outside the FRO office. Again, it was not a satisfactory explanation that Mr. Hussain did not take the opportunity to review the FRO Privacy Policies which were not only made available to him but concerning which he had been urged to review.

33Although I have found that Mr. Hussain ought to have known that it would be improper to share such information with outsiders, it was not clear that the specific event identifying the exchange with Mr. Afzal in March of 2008 had been clarified as the incident in question. It was not specifically referred to in his interview with the FIT Team nor was it clear that Ms. Liston while alleging that he had violated the code, had also provided particulars as to the identity of the clients and the nature of the material nor the timeframe when it was said that he had acted improperly in this regard. It is possible, in the circumstances, that Mr. Hussain might not have been fully apprised that these particulars concerned Mr. Afzal until this proceeding was under way. Accordingly, while I find that Mr. Hussain did indeed breach the confidentiality code and that he denied having ever done so, it cannot be said that he knowingly denied the details concerning that breach. Therefore, while it was a serious breach of protocol it cannot be said that Mr. Hussain knowingly denied the specifics of that breach until the particulars became apparent during these proceedings. It is difficult, however, to imagine that there could have been any satisfactory explanation for this fundamental breach of clients’ privacy. In terms of the totality of his misconduct, this ranks with the most serious and merits an equivalent disciplinary response.

The Defamatory and Discriminatory Videos

34Mr. Hussain did receive two videos each of which were totally inappropriate. One was violent and demeaning of women. The other was racially discriminatory. Each of these were inappropriate in nature and, if circulated by Mr. Hussain within the working environment, would no doubt constitute a violation of the Province’s IT Resources Guidelines. In particular, such activity might be considered a violation of restrictions 1, 7, 8 and possibly even 9 which were set out earlier in this award. In this case, however, Mr. Hussain did not widely disseminate the video which he had received via e-mail. Rather, after some time, he forwarded the e-mails and attachments to his home and his wife’s home e-mail addresses. While technically in violation of the first restriction by storing the material on his computer and forwarding it to his home, rather than deleting it entirely, it was not in my view a significant matter that he failed to delete it forthwith and went on to send it to himself. While his conduct might warrant some form of discipline, it is my view that these circumstances would not have merited any significant punishment notwithstanding the grotesque nature of the material itself. It is, however, troubling that Mr. Hussain again asserted in his pre-disciplinary memo to Ms. Liston that he had received no training on the Employer’s Workplace Discrimination and Harassment Policy nor on its IT Policies and Procedures. His explanation for much of the impugned conduct was to rationalize that the Employer had failed and was at fault for not having provided appropriate training in matters which, in my view, were fundamentally self evident.

The Human Rights Issues

35As indicated earlier, I had previously ordered that any Human Rights issues and allegations raised by Mr. Hussain should be brought before me. Furthermore, the Union was directed to provide detailed particulars of those allegations. Particulars in this respect were ultimately provided by the Union. However, since Mr. Hussain failed to appear and/or testify the only evidence on those matters was introduced through examination and cross-examination of the Employer’s witnesses. Indeed, the Union had full opportunity to cross-examine these witnesses on all matters including human rights allegations. Furthermore, during the course of proceedings before me, Mr. Hussain was provided with a translator to insure that he understood and was able to fully participate during the testimony of the various witnesses. This was so notwithstanding that Mr. Hussain had been able to function satisfactorily in English while working for eight (8) years as a government employee.

Among the allegations:

Of the employees who were identified with links to the impugned blog, no Caucasian was disciplined. In fact, Mr. Romano Carletti, a Caucasian, was investigated with respect to his participation in the blog and ultimately terminated for misconduct which included aspects similar to some of those for which Mr. Hussain was terminated. Those included the inappropriate use of IT resources for personal business; the disclosure of confidential information to non-government employees and the failure to take ownership of his failures in this regard. Mr. Carletti’s termination was upheld in an arbitration award issued by Vice Chair Janice Johnston dated November 25, 2011 (see GSB #2009-1144, 2009-1145). Furthermore, the evidence of all witnesses indicated that the selection of Mr. Hussain for investigation had nothing to do with his race, colour or ancestry but because of the extent of the investigation into his manager’s IT resources flowing from his participation in the blog. Had Mr. Hussain not been implicated in what appeared to be inappropriate transactions involving Mr. Bangura it is doubtful that he would have been subjected to any investigation whatsoever.
There were allegations that at least two Caucasian employees of FRO were engaged in outside businesses for which activity they had not been disciplined.
Ms. Liston testified that staff are indeed allowed to have second businesses. They are, however, required to request approval from the Deputy Minister in order to engage in secondary work. It is the Deputy Minister only and not Ms. Liston who makes the determination as to whether or not the business activity might constitute a conflict of interest with an employee’s FRO work. Ms. Liston was cross-examined regarding a Mr. RR, a manager in Client Services who was also engaged as a real estate representative, not as a broker. Ms. Liston testified that Mr. RR had advised her when he had successfully completed his licence. At that time she advised him to get permission from the Deputy Minister which to her best recollection took place in the late summer or early fall of 2008. There was no evidence introduced that Mr. RR was engaged in real estate activities during regular FRO working hours.
Ms. Liston also was questioned about employee CJ who was involved in a travel agency. When Ms. Liston observed that Ms. CJ drove a car with paint advertising a travel agency she advised CJ’s manager to follow up with an appropriate request to the Deputy Minister. This she referred to as a declaration of a conflict of interest, it being the Deputy Minister’s task to determine whether or not there was indeed a conflict which could not be allowed. Subsequently, Ms. Liston was advised by CJ’s manager that the appropriate application had been filed and approved by the Deputy Minister. Ms. Liston could not recall the exact time frame during which these events arose with respect to Ms. CJ. In any event, there was no evidence introduced that Ms. CJ operated a travel business during regular working hours.
Ms. Liston also testified that employees’ IT resources are not regularly subjected to routine IT forensic investigations. It would take some specific, inappropriate information to trigger such an investigation as was the case in Mr. Hussain’s situation. That was, of course, the series of exchanges between Mr. Bangura and Mr. Hussain which not only appeared to involve work secondary to that at FRO during regular working hours but also potentially fraudulent activity. That information came to the attention of management through what had already started as a forensic IT investigation into the blog. On the other hand, the secondary businesses regarding RR and CJ did not arise as a matter of IT resources. There was, therefore, no reasons to suspect an IT violation or to prompt a forensic investigation with respect to those two employees. As indicated, there was no evidence introduced that either RR or CJ were conducting a second business during working hours or through their government IT resources.
Several other FRO employees were alleged to be engaged in receiving and sending inappropriate images and messages through their workplace computers including Mr. BR who had originally sent the inappropriate video attachments to Mr. Hussain. With respect to Mr. BR, Ms. Liston testified that, when management received the many reports flowing from the blog IT investigation, they had to prioritize the persons and issues to be pursued. Many employees who had used their e-mail inappropriately on only one or two occasions received simply a general caution whereas those involved more often and in more serious misconduct were pursued more vigorously. Mr. BR was far from the top of the list. On the other hand the Deputy Minister did take the opportunity to remind all staff of the policy concerning the inappropriate use of government e-mail accounts. Ms. Liston as Director would not have been involved in any discipline less than termination. Lesser matters were dealt with by the managers. Accordingly, she could not confirm whether or not Mr. BR had or had not been further investigated and disciplined. He may well have been.
A Mr. ER was apparently the source of the inappropriate videos which were sent to Mr. BR and in turn to Mr. Hussain. Ms. Liston who has about 350 people within her group believed that ER was among her staff. However, she was unable to confirm whether or not he had received some lesser form of discipline than termination since she would not be involved at that lower level. In particular, at her level, that is, as Director, her concern was more importantly upon potentially fraudulent activity in the workplace and breach of client privacy.
Ms. Liston was also cross examined regarding the inappropriate use of e-mail by several other FRO employees including Ms. GT, Mr. MN, Ms. AD and Ms. SA. She was unaware as to whether or not any of these individuals had been investigated or disciplined for inappropriate conduct. While there were allegations that these persons had exchanged inappropriate images and other material, no evidence was introduced concerning those allegations.
Ms. Liston was also cross examined with respect to the manner in which employees might have been apprised or informed of the Workplace Discrimination and Harassment Policies by the Employer. She confirmed, as was earlier reported in this Award, that upon opening one’s computer the first screen speaks to its appropriate use and includes links to IT and other policies and procedures including that to WDHP Policies. There is, therefore, a daily reminder of an employee’s responsibilities with respect to the appropriate use of computer resources. Among the various links is that to a training module regarding WDHP Policies. In addition, as indicated earlier, e-mail reminders are sent out periodically to staff concerning appropriate conduct in the workplace. In particular, the Deputy Minister sent such a reminder to all staff in 2008 concerning the declaration of conflicts of interest as well as WDHP. Finally, Ms. Liston testified that the Assistant Deputy Minister conducted staff meetings every three months during which WDHP issues were addressed on several occasions.

36In the circumstances, as indicated earlier, I was satisfied that Mr. Hussain had notice of all relevant policies and procedures with respect to the use of his computer and government information technology equipment as well as policies governing conflict of interest and discrimination and harassment in the workplace. In particular, with respect to the human rights allegations, I have considered the testimony of Ms. Liston, Ms. Karki as well that of Mr. Langille, Mr. Beckman and Mr. Copp. In doing so, I have reviewed also the transcript of the interview of Mr. Hussain and the examination and cross examination of Mr. Beckman who conducted that process. Having considered all available evidence including testimony and documentation I was not satisfied that the Human Rights allegations put forward and particularized in this matter were supported or substantiated through the evidence that was adduced before me.

The Decision to Terminate

37In arriving at her decision to terminate Mr. Hussain, Ms. Liston emphasized that for the FRO office, due to the sensitive nature of its operations and the personal information which is maintained on an ongoing basis for its many clients, the integrity of its personnel is of the utmost importance. She, as Director, must trust that they will perform their duties with integrity and be candid in their dealings with members of management including herself. With respect to Mr. Hussain, she was particularly troubled not only by reason of the four elements of misconduct identified in the allegations against him but because of his failure to take ownership or responsibility with respect to the matters under review. In particular with reference to Mr. Hussain’s response to the allegations set out in the pre-disciplinary notice, Ms. Liston testified as follows:

The Grievor withdrew from his concession that he did know the true intended purpose of the payroll stubs he had prepared; rather, he reasserted his initial position that he had prepared them for calculation purposes only. Ms. Liston testified that she did not believe that the Grievor honestly understood that he was simply preparing calculations on the direction of his manager.
Mr. Hussain claimed that he had initialled documents under duress during his meeting with Mr. Beckman and that in the circumstances he “denied those initials”. Ms. Liston testified that she believed Mr. Hussain had indeed initialled the documents and had done so because they had been prepared by him as he had acknowledged during his interview with Mr. Beckman.
Mr. Hussain claimed that Mr. Beckman had somehow pressured Mr. Hussain’s union representative to compel Mr. Hussain to accept the allegations brought to his attention during the interview. Ms. Liston testified that she was not present during the interview but that her review of the transcript did not indicate that the union representative had unduly influenced Mr. Hussain to accept the allegations. Further, Ms. Liston acknowledged that anyone involved as a subject in such an interview would feel stressed but that there did not appear from the transcript that the Grievor had been put under any more pressure than anyone else in similar circumstances.

38I have reviewed the transcript and the testimony regarding that interview and am of the view that the union representative did not put undue pressure on Mr. Hussain to acknowledge or agree with the allegations. If anything, she encouraged him to answer the questions and to do so in a truthful manner. I do not consider that advice inappropriate and, in any event, it could hardly be considered undue pressure. In the circumstances, Ms. Liston, as expressed in the letter of termination of February 22, 2010 took issue with the denials expressed by Mr. Hussain in his pre-disciplinary memo which he maintained during his pre-disciplinary meeting with Ms. Liston and others. In view of his stated denials and her view that the four elements of misconduct had been substantiated, Ms. Liston felt she had no option but to terminate Mr. Hussain’s employment. It was suggested among the various allegations made by Mr. Hussain that he was terminated at a time and because Ms. Liston believed he would be filing a complaint with the Human Rights Commission; however, Ms. Liston testified that she suspected Mr. Hussain would grieve his termination but did not suspect or become aware that he had filed a Human Rights Complaint until more than a year after his termination. Additionally, with respect to the suggestion or allegation that Mr. Hussain was handicapped with respect to the English language, Ms. Liston testified that in over eight years of employment, to her knowledge, there had never been an issue concerning his ability in the English language. At no time had management been made aware that he had any disability with respect to the English language. Furthermore, to her knowledge there were no problems with his work which required proficiency in English to perform.

I have considered the entirety of the evidence and the submissions of counsel and am satisfied that Mr. Hussain knowingly engaged in the following conduct:

He was a participant in a scheme in which he fabricated payroll records the validity of which was on balance improbable. Further, the probable use of such records was to establish on behalf the named employee/payee an income level high enough to induce a potential mortgagee to advance funds to the borrower sufficient to close a potential real estate transaction. Whether or not those transactions came to fruition, I am satisfied that Mr. Hussain must have understood why Mr. Bangura had requested these documents and the likelihood that they would be used to secure a mortgage loan. Indeed, it appears that at least one of the loan transactions in favour of Ms. Fidela Amurao did proceed on the basis of the document prepared by Mr. Hussain which indicated her employer as Mr. Bangura’s mortgage brokerage company and her annual salary at $75,000. As a FRO employee her annual earnings were closer to $50,000. That, of course, was a dishonest scheme and Mr. Hussain’s participation in it reflected a lack a personal integrity. Worse still, had any consequential transaction gone bad, the results could have impacted upon the reputation of the FRO office itself. In addition to my concerns about the participation of Mr. Hussain is the added concern that he fundamentally refused to acknowledge any wrongdoing. In fact, he at first suggested that he was under duress from his manager to perform what were simply calculations and only conceded the purpose of the first set of documents when it became clear that the transaction involved the sale of his own home and he had been backed into a corner. That he later resiled from that admission and again sought to minimize his culpability was ludicrous and only served to cast further doubt upon his integrity and trustworthiness.
I am also satisfied that Mr. Hussain again failed to take ownership of his conduct when he denied that he was engaged in work extraneous to his duties at FRO. The volume of documentation discovered, the number of years involved and the amount of known time devoted by Mr. Hussain during a brief period in March/April 2009 to internet activities belie the possibility that the work was only occasional for family and friends and was always, except on one rare occasion, performed at home. Furthermore, the existence of the one invoice by Mr. Hussain to a client which included an amount for HST suggested that he was indeed engaged in those personal activities for gain and profit. Again, in his interview and in his pre-disciplinary meeting memo to Ms. Liston, the Grievor sought to minimize the nature of his activities and the degree of wrongdoing. Indeed, had he earlier disclosed this work and refrained from doing so during regular FRO working hours there might have been no problem perceived by the Deputy Minister. Here, however, he did none of that and sought again to minimize his culpability in the face of considerable information to the contrary.
It was also clear from the evidence that Mr. Hussain did indeed share with an associate private and confidential information he had ascertained from the MECA system. While he might not have been provided with particulars of that incident, it is surprising that, having breached his Oath of Secrecy in such a significant way on this one occasion, that he would have forgotten having done so. It was a major and significant violation of the clients’ rights and his duties to his employer to maintain the integrity of the Family Responsibility Office. That it was found to have occurred on only this one occasion suggests that it was not a mere slip up that occurred during the ordinary course of his duty. Rather, Mr. Hussain was not involved in his regular duties when the incident occurred. Rather, he had gone out of his way to assist a non- FRO acquaintance by providing him with internal, confidential information. Surely that is not something he would easily forget. In any event, giving him the benefit of the doubt insofar as his recollection is concerned, this was still a more than significant breach of his Oath of Secrecy, the IT resources policy and common sense duty of confidentiality owed to FRO clients. All of this again casts doubt on Mr. Hussain’s integrity and trustworthiness.
Finally, there was the reference to the two inappropriate videos which, as indicated earlier, I found to be more than unacceptable. However, not having participated in the circulation of those videos save to his own home, I do not consider their mere presence in his e-mail account worthy of significant discipline. On the other hand, again Mr. Hussain claimed in one of his meetings with management that he had never before seen these videos. That denial is surprising in view of the fact that he later chose to forward them to his home computer rather than deleting them entirely from his system. The latter would have been the appropriate course of action given the government policies with respect to such images. In any event, it is troubling that Mr. Hussain again denied any knowledge of the existence of the images on his computer or their content.
In view of these findings which I have made, it is not surprising that Ms. Liston the Director of the FRO office in question would have had significant misgivings about the trustworthiness of Mr. Hussain and his ability to conduct himself with integrity in the future. Aside from his conduct which I found to be significantly unacceptable, his inability to take ownership of his wrongdoing is more than troubling. Ms. Liston was of the view that the employment relationship could not be repaired. I too am of the view that Mr. Hussain has totally undermined his own integrity not only by the nature of his misconduct which in some measure was itself morally and also legally questionable, but as importantly, his failure to take ownership of it. In the circumstances, his reinstatement would put the office of Family Responsibility at significant risk.
While there is no reason to believe that Mr. Hussain did not otherwise conduct his regular duties in a competent manner over the several years during which he worked for the FRO office, there were no other mitigating factors in this case to rationalize the substitution of a lesser penalty. Indeed, it was disappointing that Mr. Hussain retracted the admissions he had made during his interview thereby putting the Employer in the position to prove each and every incident. It was equally troubling that at the conclusion of the Employer’s case he failed to participate further in these proceedings without providing satisfactory information confirming his inability to do so. Sadly, perhaps by then, he had recognized that his situation was beyond redemption.

39My findings with regard to this matter including my support of the Employer’s decision to terminate in the circumstances here are not without precedent before this Grievance Settlement Board. Vice Chair Johnson in a decision between these same parties involving the grievor Mr. Carletti which was released on November 25, 2011, was faced with the results of an investigation which again flowed from the same blog which led to Mr. Hussain. That too was a termination case and involved elements of wrongdoing some of which were similar to those of Mr. Hussain. Furthermore, of significant concern in that matter was the trustworthiness and/or integrity of the grievor. However, in that case Mr. Carletti did testify. His evidence, however, was found to be more than unreliable. Considerations concerning his conduct and his trustworthiness were not significantly different than those presently before me. Vice Chair Johnson in the matter before her addressed her concerns respecting reinstatement of the grievor in several paragraphs as follows:

149A critical factor to be considered when deciding if it is appropriate to overturn a discharge and return an employee to the workplace is an assessment of the likelihood that the individual might again engage in the conduct that led to the discharge. Another important consideration in the case of Mr. Carletti is whether or not he can be trusted by his employer in the future. In answering these questions, I have carefully reviewed the ever-shifting testimony of Mr. Carletti. In the case before me, he was often not truthful and if he did admit engaging in inappropriate conduct, it was only when he had been backed into a corner. He continually tried to minimize any wrongdoing on his part and sought to place the blame elsewhere.

40In addition to those concerns, the grievor before her, Mr. Carletti, had shared confidential information he was able to access through the MECA system from the Ministry of Transport database and then disclosed that confidential information outside FRO. Although the facts were somewhat different, the breach of confidentiality by Mr. Hussain was similar in its impact upon the trust placed in him by the FRO office. At paragraph 150 Vice Chair Johnson commented as follows:

150The actions of Mr. Carletti in accessing the MTO database in the unacceptable manner in which he did and then disclosing confidential information out of this restricted database could potentially jeopardize a critical relationship based on trust between the Ministry he worked in and the Ministry of Transportation. The ability to access the MTO database is an important enforcement tool and his violation of the trust placed in him to use this tool appropriately is a serious matter.”

41As indicated earlier, I am not satisfied that there is any basis upon which to consider that the relationship of trust between Mr. Hussain and the Family Responsibility Office might be re-established. Indeed, it is my view that his posture with respect to his conduct has put that consideration beyond possibility. For the foregoing reasons the termination of Mr. Hussain is upheld and the grievance dismissed.

42In closing, I would like to extend to counsel my appreciation for their perseverance as well as for their thoughtful, thorough and professional presentations.

Dated at Toronto this 19^th day of April 2013.

Ontario Public Service Employees Union (Hussain) v. The Crown in Right of Ontario (Ministry of Community and Social Services), 2013 CanLII 26493

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union