GSB#2012-1141, 2012-2609

UNION#2011-0102-0011, 2012-0102-0053

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Norsworthy)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Mike Biliski Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 27, November 19, December 2, December 3 & December 13, 2013; July 17, July 22 & July 24, August 21, November 28, December 19, 2014.

Decision

1I have three grievances before me that were filed by Mr. Mark Norsworthy, a Real Estate Officer based in London, Ontario. The grievance dated August 23, 2011, challenges a reprimand issued to him by the Employer on July 22, 2011. The grievance dated April 16, 2012, challenges the 10-day suspension he received on March 28, 2012. This grievance shall be included within GSB File Number 2012-2609. In the third grievance, also filed on April 16, 2012, Mr. Norsworthy claims a violation of article 3.2 of the Collective Agreement because “the employer continues to Harass and Discriminate against me based on my participation, membership and activity in the union.” The Union acknowledged during final argument that the evidence did not establish a contravention of article 3.2. The focus of this decision then is on the two discipline grievances and the Union’s position that the Employer did not have just cause to discipline Mr. Norsworthy. No issue was taken about my jurisdiction to hear and determine the discipline grievances.

2The parties agreed to deal with the grievances in the same proceeding. The Employer called four witnesses, namely Mr. D. Bremner, Mr. M. Plant, Head, Property Section, West Region, Ms. A. Viragos, Head, Property Section, West Region, and Mr. K. Bentley. Mr. Plant moved to another position in mid-November, 2011, and Ms. Viragos replaced him at that time. Mr. Bentley, who at the relevant time was the Manager of Engineering, West Region, was called in reply. The Union called Mr. Norsworthy to testify. There was a considerable amount of oral and documentary evidence presented during this proceeding. In determining the facts relevant to the two discipline grievances, I have carefully reviewed this evidence and the submissions of counsel relating thereto. I took particular note of Mr. Norsworthy’s perspective on the circumstances which led to the discipline. I resolved any conflicts in the evidence by determining what was most probable having regard to the evidence in its entirety.

3In support of the Employer’s position that it had just cause to reprimand Mr. Norsworthy in 2011 and to issue him a 10-day suspension in 2012, Employer counsel referred me to section 7:3625 in Brown & Beatty and to the following decisions: Re Ontario (Ministry of Community and Social Services) and O.P.S.E.U. (Lall) (2012), 216 L.A.C. (4th) 184 (Petryshen); OPSEU (Aboutaeib/Carletti) and Ministry of Community and Social Services (2011), GSB Nos. 2009-144 et al. (Johnson); OPSEU (Gyapong) and Ministry of Children and Youth Services (2013), GSB No. 2010-1428 (Gray); OPSEU (Zolnierczyk) v. Ontario (Ministry of Community Safety and Correctional Services), [2011] O.G.S.B.A. No. 18 (Herlich); E. Defreitas and Ministry of the Environment & Energy (1998), P/0007/94 (Lynk); and, Gillies and Ministry of Correctional Services (1978), GSB No. 129/77 (Prichard).

4In support of the Union’s position that the Employer did not have just cause to issue the reprimand and the 10-day suspension to Mr. Norsworthy, Union counsel relied on the Privacy Act, R.S.C., 1985, c. P-21, the Public Service of Ontario Act, S.O. 2006, Chapter 35, Ontario Regulation 383/07 and the following decisions: Veridian Corp. and International Brotherhood of Electrical Workers, Local 636, an unreported decision dated September 5, 2014 (Slotnick); G & K Services Canada Inc. and UFCW, Local 206, [2013] 115 C.L.A.S. 45 (Gee); Re Nav Canada and Canadian Air Traffic Control Assn. (1998), 1998 CanLII 30171 (CA LA), 74 L.A.C. (4th) 163 (Swan); Re Sabourin and House of Commons (2006), 2006 PSLRB 15, 150 L.A.C. (4th) 1 (Mackenzie); Saint Mary’s Hospital v. H.E.U., [1997] B.C.C.A.A.A. No. 855 (Larson); Crown Packaging and Unifor, Local 433, [2014] B.C.W.L.D. 3275 (Dorsey); Re Ontario (Liquor Control Board) and O.P.S.E.U. (2011), 210 L.A.C. (4th) 134 (Abramsky); and, William Neilson Ltd. v. Milk and Bread Drivers, Dairy Employees Caterers and Allied Employees, Local Union 647, [2009] O.L.A.A. No. 271 (Starkman).

5Mr. Norsworthy began working for the Ministry in February 1989. As a Real Estate Officer his duties included land management, appraisal work and negotiations for the purchasing of property. Mr. Norsworthy did not have a disciplinary record when the Employer issued him the reprimand on July 22, 2011. I was advised at the completion of final argument that Mr. Norsworthy had recently retired from the OPS. I will address the reprimand grievance first.

The Reprimand

6When the circumstances giving rise to his 2011 reprimand occurred, Mr. Norsworthy was working on a project for the Appraisals and Negotiation section of the Property Department. His duties on this project involved negotiating with property owners about entrance closures on the Highway #3 corridor, west of Cayuga. The drive from the London office to Cayuga takes approximately 90 minutes.

7The letter issued by Mr. Plant on July 22, 2011, reads as follows:

Re: Letter of Reprimand

A meeting was held on June 27, 2011 related to a concern brought to management’s attention regarding an individual who was reclined and appeared to be sleeping in a ministry vehicle on Wednesday, March 30, 2011. In attendance at the meeting in addition to yourself was Rain Loftus, OPSEU Regional Staff Representative, Mary Dawson, Human Resources Advisor and myself.

At the meeting, you were given the opportunity to explain your work activities on Wednesday, March 30, 2011 in Cayuga. You explained in detail your day which started at 7:00 am and concluded when you returned from the field to London at 5:30 pm. You indicated after arriving in Cayuga you unfortunately fell ill and experienced intestinal problems that required you to stay close to washroom facilities in Cayuga. Due to your illness you also made it very clear you were not able to drink coffee due to its diuretic characteristic and subsequently you became tired and lacked the energy necessary to carry out the day. You subsequently set your watch, laid back in the front seat of the vehicle and slept possibly for 15 minutes. You further indicated very clearly, and clarified again when I asked you to confirm your method of operation by stating, “I always set my watch when I sleep in the field”.

As you now know, a member of the public observed you in the parking lot of Haldimand Motors on March 30, 2011 over a three hour period. While they undertook their work at the dealership, they reported that they passed your parked ministry vehicle approximately 25 times. During that time they observed you in a reclined position sleeping and took a picture at 2:13 pm. They also indicated that after you woke up, you walked the lot for approximately 15-20 minutes looking at used vehicles before heading over to Tim Horton’s across the street from Haldimand Motors.

I find your account of your activities to be extremely inconsistent for the period between 11:00 am and 2:30 pm. You indicated you were sick and struggled through the afternoon to complete your work. You did not call your supervisor to indicate you had fallen ill nor did you cancel your 3:30 pm appointment and head back to the office. You both slept and walked the lot looking at used vehicles over a period of time that exceeded 30 minutes. You indicated your inability to drink coffee had a big impact on your ability to perform at work yet for lunch you claimed a banquet burger, fries and a coffee from River 3 Restaurant, west of Cayuga.

I don’t deny that you undertook work that day but based on the information provided by the member of the public, as well as your account of your work activities, I conclude that you did not put in the hours necessary to justify claiming 2.75 hours of overtime. For these reasons, I am cancelling the overtime you booked on that day and will be recovering the time owed. In addition, I remind you that you are required to claim the appropriate hours you work when in the field doing ministry business. On this day in question I find that you did not exercise good judgment nor did you conduct yourself appropriately as it pertains to sleeping in your vehicle. Lastly, I must remind you that when using a ministry vehicle you need to be cognizant of your actions and avoid behaving in such a manner that would lead the public to conclude you are not doing an honest day’s work for an honest day’s pay.

By the authority delegated to me by the Deputy Minister, this letter of reprimand will be placed on your Human Resources file. Should there be future incidents related to unproductive use of work time and/or inappropriate reporting of work activities and work hours, further disciplinary action up to and including dismissal may result.

8Pursuant to a Memorandum of Agreement dated January 10, 2011, Mr.

Norsworthy was provided with a compressed work week (“CWW”) arrangement. His schedule provided for 9 work days and 72.5 hours of work during a two week period. His CWW schedule provided that he would work an 8 hour shift on Wednesday, March 30, 2011, from 7:00 a.m. to 3:30 p.m., with a one-half hour lunch period at 11:45 a.m., and that he would work an 8 hour shift on the Friday of that week. Mr. Norsworthy’s attendance record reflects that he worked 10 hours on March 30, 2011, and 6 hours on the Friday of that week. Although he raised more than one concern about Mr. Norsworthy’s conduct on March 30 2011, the above letter indicates that Mr. Plant issued the reprimand to Mr. Norsworthy because of his claim that he had worked 10 hours on March 30, 2011, when his actual work activities on that day did not justify a claim for more than his scheduled 8-hour day. Mr. Plant also concluded that Mr. Norsworthy was not truthful about his work activities between 11:00 a.m. and 3:00 p.m. on March 30, 2011.

9Mr. Plant met with Mr. Norsworthy on February 28, 2011, to discuss his

assignment to the Appraisals and Negotiations section and his hours of work. On the latter subject he emphasized that there was to be no overtime, that if he needed to meet with land owners outside of his regular hours of work he should modify those hours accordingly and that he required permission from his supervisor if it was necessary to work extra hours. Mr. Plant testified that he had made it clear to his staff that flexibility in the work day was needed in dealing with the public at their convenience and that shifting their daily hours was required, such as starting later or going on and off the clock as required, in order to ensure that the work was performed within the scheduled hours of work and that no overtime was worked without the prior approval of a supervisor.

10On March 30, 2011, Mr. Bremner noticed a Government of Ontario vehicle parked at the back of the Haldimand Motors lot with the driver’s seat reclined. The vehicle was a white car with the usual markings of a Government of Ontario vehicle. Based on his observations, Mr. Bremner formed the conclusion that the driver appeared to be sleeping for about two hours and he decided to report this matter. Given that the Government of Ontario vehicle was assigned to the MTO’s West Region, Mr. Bremner’s complaint came to the attention of Mr. Plant on March 31, 2011. Mr. Plant discovered that the vehicle in question had been assigned to Mr. Norsworthy. Mr. Plant spoke with Mr. Bremner on March 31, 2011, about what he had observed at the Haldimand Motors lot. Mr. Bremner had indicated during their conversation that he had taken a picture of the vehicle parked in the lot with the driver’s seat reclined and that he had considered sending the picture to a newspaper. After Mr. Plant advised him of the nature of the work performed by the Ministry employee, that the employee could modify his work

hours and that he would look into the matter, Mr. Bremner decided not to report the

matter to any media outlet. Mr. Plant took brief notes during their conversation and asked Mr. Bremner to send him an email outlining his observations, along with the picture he took of the vehicle.

11While waiting for the email from Mr. Bremner, Mr. Plant initiated an investigation. He reviewed Mr. Norsworthy’s time sheet for the period at issue and his cell phone usage for March 30, 2011. He spoke to Mr. Norsworthy’s supervisor, Mr. B. Grimes and discovered that Mr. Norsworthy did not ask permission to work extra hours on March 30, 2011. By letter dated April 21, 2011, three weeks after the day in question, Mr. Plant advised Mr. Norsworthy that a fact finding had been initiated in response to a complaint from a member of the public. The allegation was that he was “not engaged in work related activity during the time period where you had indicated to the employer that you were working.” Mr. Plant directed Mr. Norsworthy to provide him with a “written, detailed, time-lined account of your activities during the hours you indicated you had worked” during the week starting March 28, 2011.

12By email dated April 28, 2011, Mr. Norsworthy provided Mr. Plant with a report in response to his direction. With respect to his activities on March 30, 2011, Mr. Norsworthy in effect reported that he was in the London office at 7:00 a.m., returned to London at 5:17 p.m. from Cayuga and was in the London office until 5:30 p.m. or later. He noted that he drove to Cayuga mid-morning and also that he “Met with owner (Fournier) for contentious entrance removal discussions at 3:30 pm.” From his arrival in Cayuga until he left for the Fournier meeting scheduled for 3:30 p.m., Mr. Norsworthy reported that his activities consisted of “Visited various removal sites and wrote and delivered letters to owners.” At the end of the report, Mr. Norsworthy indicated that he could not remember the details of everything he did that week and that he was confident that he did more than what he had listed.

13Mr. Plant received the requested email from Mr. Bremner on May 18, 2011, which described what he had observed at Haldimand Motors on March 30, 2011. Mr. Bremner apologized for the delay in sending the email and explained that he had lost for a time Mr. Plant’s contact information. He indicated that he had lost the paper that he had written down the timing of events, but that he was confident that the times that he had set out in the email closely reflected when the relevant events occurred. Mr. Bremner attached to the email the picture he had taken of the vehicle on the day in question and noted that the picture was taken at 2:13 p.m. on March 30, 2011, according to the time stamped on his phone.

14By letter dated June 7, 2011, Mr. Plant advised Mr. Norsworthy that he wanted to meet with him to discuss his activities during his hours of work on March 30, 2011. He advised him in a couple of paragraphs about what he understood a member of the public had observed at Haldimand Motors with respect to the vehicle Mr. Norsworthy was operating on that day. Mr. Plant specifically noted that the member of the public had observed the driver’s seat reclined for a long period of time and an instance when the driver’s eyes were closed, with his mouth open.

15The meeting to discuss Mr. Norsworthy’s work activities on March 30, 2011, took place on June 27, 2011. As the notes taken at the meeting disclose, Mr. Plant was interested in hearing from Mr. Norsworthy about what he did between 11:00 a.m. and 3:00 p.m. Mr. Norsworthy comments at the meeting about what he did during this period of time can be summarized as follows. He did park his vehicle at the rear corner of the lot because it was a safe and out of the way location where he could work. He did not park there continuously, but left the lot twice. He left from Haldimand Motors to visit owner’s properties, but he did not meet anyone. He also left to have lunch at the River 3 Restaurant at around the noon hour. The third time he left Haldimand Motors was to go to the Fournier meeting. He was sick that day coming into Cayuga with temporary intestinal issues. He typically took his 15 minute break after 2 p.m. Although he did not normally recline the seat when he worked in the car, he did recline the seat and slept on that day after setting his alarm for 15 minutes. He was tired and did not drink coffee. In response to seeing the picture of his vehicle on the lot, he noted that the head rest was reclined, that it was unfortunate that he was sick, that he stayed near the washroom, that his illness wiped him out and that he hadn’t had his coffee. He again later noted that he needed to be near a washroom and didn’t know how long he was asleep, but his alarm typically was set for 15 minutes. When he is not sleeping, he is working. He did not inform his supervisor that he was ill. When asked if he wanted to add anything, he said it was not a typical day because of his sickness.

16The witnesses who testified directly about what occurred at the Haldimand Motors lot on March 30, 2011, were Mr. Norsworthy and Mr. Bremner. Although the evidence addressed Mr. Norsworthy’s activities throughout the entire day, I will focus primarily on the evidence concerning his activities between 11:00 a.m. and 3:00 p.m. because this was the time period Mr. Plant had focused on when he determined that Mr. Norsworthy’s conduct warranted a reprimand.

17The central aspects of Mr. Bremner’s testimony can be summarized as follows. On March 30, 2011, Mr. Bremner was working on the main lot of Haldimand Motors, in Cayuga, from about 10:00 a.m. until 2:55 p.m. He was taking pictures of vehicles for online advertising on the Autotraders web site. Without stopping for lunch, he was driving vehicles to and from a staging area where he would take the pictures. He believed he first noticed the Government of Ontario vehicle parked at the back corner of the main lot at around 11:00 a.m., or shortly thereafter. The vehicle stayed at that location until about 2:15 p.m. His route to the staging area took him around the perimeter of the main lot and, about every 10 minutes, he would drive by the vehicle and did so at least twenty-five times. The driver was fully reclined in the driver’s seat for the entire time he observed the vehicle parked at that location. For the majority of those occasions when he passed by the vehicle, he simply glanced at the vehicle, but on five or six instances, the first of these sometime between 12:00 p.m. and 1:00 p.m., he slowed down and looked in the car and observed a man on his back in a sleeping position with no seat belt on. On one occasion he was close enough to observe that the man had his eyes closed and mouth open. At 2:13 p.m., he took a picture of the vehicle using his phone. The driver cannot be seen in the picture given that the driver’s seat is fully reclined. He did not at any time observe the driver reading, writing or on his cell phone. At about 2:15 p.m., the driver moved the vehicle to the centre aisle of the main lot, exited the vehicle and proceeded to look at vehicles for approximately 15-20 minutes. As he was leaving Haldimand Motors at close to 3:00 p.m., Mr. Bremner noticed the Government of Ontario vehicle across the street entering the drive-thru at Tim Horton’s. He was upset about a government employee being paid for not working and starting making some calls to the MTO around 12:30 p.m. to complain about the matter. Mr. Plant called him on the following day to discuss the incident.

18The key aspects of Mr. Norsworthy’s testimony about his activities between 11:00 a.m. and 3:00 p.m. on March 30, 2011, can be summarized as follows. He started work at 7:00 a.m. at the London office and spent the day engaged in his corridor management duties. He had expected to meet an owner at the Swap Shop in Cayuga at 10:30 a.m. and he had a firm appointment with owner Fournier at 3:30 p.m. at Fournier’s home. This meeting with Fournier had been moved to that day from the previous Monday. He left the London office around 8:30 a.m. and drove to Cayuga, arriving before 10:30 a.m. Just as he was arriving at Cayuga he began experiencing stomach cramps. He believes that he used the washroom at Haldimand Motors and then went to the Swap Shop, but the property owner Mary Maderios did not show up for the meeting. He noted that he did not take minute by minute notes so that he “couldn’t put a time to a lot of stuff” and that he was not certain of the sequence of a lot of his activities. He was fairly certain that after leaving the Swap Shop he drove to the Mary Maderios property to visualize the solution that he had in mind for the driveway issue. He did recall driving the project on that day to see if he could meet with owners who had not contacted him. While driving the project he would call owners or drop off letters to some owners if necessary. He would make a note of what he did at each site. He then drove to Haldimand Motors where he parked at the rear of the main lot. This was a location that he had often used because it was inconspicuous, safe and allowed him to do his paper work and make phone calls. He described his routine when working in his car, some of which he recalled doing on March 30, 2011. He made phone calls and notes of conversations he may have had that day. He made notes of observations he had made while driving the project. He reviewed the active files of the eight owners he still had to deal with and the steps he had to take to complete the project. He commented on the cell phone calls referred to in the phone log provided by the Employer and noted that Mr. Plant had refused to provide him with the phone log until production was provided in this proceeding. While in the car he signed and dated some pre-printed letters to owners. He also continued the process of identifying each relevant property with the 911 number. Consistent with his practice, he drove the short distance to the River 3 Restaurant for lunch at around the noon hour. In cross-examination he stated that he was not certain when he had lunch, but that lunch took about 20 to 30 minutes. When he arrived at the River 3 Restaurant the waitress immediately brought him coffee and he ordered the special of a burger and fries. He took a few sips of the coffee, but mostly drank water. Given his intestinal issue, although it was staring to abate, he nibbled at his food without eating a lot. The lunch receipt he submitted to the Employer has a banquet burger, fries and coffee written on it, but does not have a time on it. After lunch, he returned to the Haldimand Motors lot and parked at the same location. He checked voice mail, reviewed files again to see if he had missed anything and spent some time preparing for the Fournier meeting at 3:30 p.m. His driver’s seat was relined when his vehicle was parked at the rear of the main lot at Haldimand Motors. He used the phone and looked at files with the seat in this position. Since he did not have bifocals yet, sitting in this position allowed him to hold the files at arms length so he could read them. He did not recline the seat because of his illness. At around 2:00 p.m., with nothing to do, he set the alarm on his watch for 15 minutes and closed his eyes. Having given it more thought since the allegation meeting when he told the Employer that he did not recall how long he had slept, he was certain that he had slept for no more than fifteen minutes. When the alarm went off he knew his break was over and it was time to visit Fournier. Given that he was in the car for over an hour, he wanted to stretch his legs and test out whether he needed to use the washroom. He got out of his vehicle and took a five minute walk around cars. He did not report his illness to his supervisor because he did not feel that sick and it was not debilitating and only required a few extra trips to the washroom. After his walk he returned to his car and left Haldimand Motors to attend the Fournier meeting. He could not recall using the Tim Horton’s drive-thru directly after leaving Haldimand Motors.

19The cell phone log of Mr. Norsworthy’s calls on March 30, 2011, records 11 calls between 11:00 a.m. and 3:00 p.m. There were 3 calls between 11 a.m. and 12:00 p.m., the last at 11:14 to pick up a cell phone voice mail message. There were five calls between 12:00 p.m. and 1:00 p.m., the last one at 12:18. Most of these calls took a minute or less to complete, with the longest one taking 2 minutes and two seconds. Two of the calls, one at 12:13 and the other at 12:18, were likely calls made to property owners to leave a message. There were three calls between 1:00 p.m. and 3:00 p.m. The one minute call at 1:05 was made to pick up any cell phone messages. Calls at 1:37 and 2:44 were made to pick up messages from his office voicemail. Each lasted less than 40 seconds.

20At the completion of his investigation of Mr. Bremner’s complaint, Mr. Plant came to the conclusion that Mr. Norsworthy claim of a 10-hour work day on March 30, 2011, was not justified because he had not been engaged in work activities for much of the time that he had been parked at Haldimand Motors. After considering the evidence relevant to the reprimand grievance, I have reached the same conclusion.

21In resolving any significant conflict between the testimony of Mr. Bremner and the testimony of Mr. Norsworthy, I generally preferred the testimony of Mr. Bremner. Mr. Bremner was clearly focused on the Government of Ontario vehicle parked at the rear part of the Haldimand Motors main lot. He had decided to report what he was observing by 12:30 p.m. and continued to pay attention to the vehicle until he left Haldimand Motors at around 3:00 p.m. Although his duties precluded him from continuously observing Mr. Norsworthy and the vehicle, he was in a position to closely observe the vehicle with some regularity throughout the relevant period. On the other hand, it was clear from Mr. Norsworthy’s testimony that he did not have a very good recollection of what he had done and when he had performed certain work on March 30, 2011. This is not surprising given that he was not alerted to the fact that there was an issue about his work on that day until about three weeks after the incident. During his testimony Mr. Norsworthy seldom referred to the timing of the activities he described. Although he indicated that he could recall some of his activities while parked at Haldimand Motors, he testified mostly about his usual work routine rather than having a specific recollection of everything that he actually did during the relevant period. Employer counsel submitted that Mr. Norsworthy was often not telling the truth when he described the activities that he had performed on March 30, 2011. Union counsel submitted that Mr. Norsworthy testified based on his best recollection of events without attempting to be untruthful. I am satisfied that many of the unreliable features of Mr. Norsworthy’s testimony can simply be attributed to his inability to precisely recall all the details of the work he performed on March 30, 2011.

22I find on the evidence that Mr. Norsworthy arrived at Haldimand Motors no later than 11:30 a.m. on March 30, 2011, and parked his government vehicle at the rear of the main lot. He and his vehicle stayed at that parking spot until shortly after 2:15 p.m. It was then that Mr. Norsworthy moved the vehicle to the center aisle of the main lot, exited the vehicle and spent the next 15 to 20 minutes walking the lot. Just before 3:00 p.m., Mr. Norsworthy left the lot, went to the Tim Horton’s drive-thru and then went to the Fournier meeting. Although Mr. Norsworthy told the Employer at the June 27, 2011 meeting that left the lot twice, once to drive the project and a second time for his lunch break, I accept Mr. Bremner’s testimony that the vehicle did not leave the lot during the relevant period. Mr. Norsworthy did not testify that he definitely left the lot to drive the project and it appears that his best recollection was that drove the project before he went to Haldimand Motors. If Mr. Norsworthy did drive the project that day, he probably did it before arriving at Haldimand Motors. Mr. Norsworthy’s was not certain when he went to lunch at the River 3 Restaurant on March 30, 2011. It is more likely than not that he took his ½-hour lunch before he went and parked at Haldimand Motors. Having taken his lunch before he arrived at Haldimand Motors, he was left for the remainder of his work day with a 15-minute break under the Collective Agreement.

23Mr. Norsworthy does not dispute that his seat was reclined while he was parked at the rear of the lot at Haldimand Motors. The reason a person reclines a vehicle’s seat is usually to rest or to have a nap. The fact that the driver’s seat was reclined for such a long period of time while he was parked at the lot is some indication that Mr. Norsworthy spent more time resting or sleeping than he did working. Mr. Norsworthy acknowledged at the June 27, 2011 meeting that his seat is not normally reclined when he works in the vehicle. He testified however that his seat was reclined on that day so he could read his files by stretching out his arms, in the absence of bifocals. He did not offer this as an explanation to the Employer at the June 27, 2011 meeting and this explanation during his testimony lacked a ring of truthfulness. Mr. Norsworthy clearly indicated at the June 27, 2011 meeting that his seat was reclined because he was tired due to his illness. Yet during his testimony he minimized the impact of the illness by stating that it only required him to stay close to a washroom. Mr. Norsworthy also indicated at the June 27, 2011 meeting that he did not know how long he slept, yet he was certain during his testimony that he slept for no more than 15 minutes. Although Mr. Bremner was not near the vehicle for the entire time that Mr. Norsworthy was parked in the lot, he came close to the vehicle on 5 or 6 occasions spread over some time when he did not observe any work activity taking place in the vehicle. These features of the evidence suggest that it is likely that Mr. Norsworthy spent less time engaged in work activities when he was parked at the rear of the lot than he related in his testimony. And as noted previously, Mr. Norsworthy’s description of the work he did was based more on his general practice than what he specifically recalled doing on that day.

24Mr. Plant did not dispute that Mr. Norsworthy did some work while he was parked at Haldimand Motors on March 30, 2011. The cell phone log indicates that he made some calls during the relevant period, although the calls did not take much time. I am also satisfied that Mr. Norsworthy probably did some of the work he described in his testimony while he was parked at the Haldimand Motors lot. However, even if one just considered the 15 minutes he said he slept and the 15-20 minutes he walked the lot, he had already exceeded his afternoon break time. And considering all of the evidence for the relevant period, including in particular the direct observations by Mr. Bremner of no activity within the vehicle for an extended period of time, it is more likely than not that Mr. Norsworthy spent more than these 30-35 minutes not working when he was stationed at the Haldimand Motors lot on March 30, 2011. I find therefore that the Employer has established that it had just cause to reprimand Mr. Norsworthy for claiming a work day of 10 hours on March 30, 2011 when he was not engaged in work activities to justify a claim for that many hours.

Ten-Day Suspension

25I turn now to the issue of whether the Employer had just cause to issue Mr. Norsworthy the 10-day suspension. As the suspension letter highlights at the outset, the Employer relied on two grounds to suspend Mr. Norsworthy, namely dishonesty and insubordination. The suspension letter dated March 28, 2012, issued by Ms. Viragos, reads as follows:

Re: Disciplinary action – Suspension without pay for insubordination and dishonesty

On March 2, 2012, Michael Plant and I met with you, your OPSEU representative, Len Elliott, and Jennifer Pierce, HROntario. The meeting was held to discuss allegations that you continually failed to follow your manager’s repeated direction to provide information with respect to your obligations as a public servant and that you were untruthful or misleading to your manager when you provided information on January 11, 2011 with respect to the work performed for DSM Group during your leave of 2007 and then on April 29, 2011 you provided information that contradicted the information provided by you on January 11, 2011.

After reviewing your behaviour and actions, and taking into account the comments and explanations you provided at the March 2, 2012 meeting, I have concluded that your actions/behaviour were intended to mislead the Employer and as such constitute a serious breach of your obligation to be forthright, transparent and follow the reasonable the reasonable instructions you have been given. Your actions also constitute a very serious breach of your responsibility to communicate honestly with your manager.

As an employee of the Ministry of Transportation this conduct is inappropriate and cannot be tolerated. In determining the appropriate discipline, I am also taking into account a previous letter of reprimand issued to you on July 22, 2011 where you were found to have inappropriately reported work activities and hours of work. Therefore by the authority delegated to me under section 44 of the Public Service of Ontario Act, 2006 I hereby suspend you for cause in accordance with section 34 of that Act. You are being removed from employment for Ten (10) days without pay commencing Thursday, March 29, 2012 to April 13, 2012 inclusive. You will return to work by 8:00 a.m. on Monday, April 16, 2012.

Please be advised that you have the right to grieve this decision in accordance with the terms and condition of the Collective Agreement.

In the future, it is my expectation that you will follow direction from your manager and that you will communicate with you manager in an open and honest way.

Any further misconduct may result in further disciplinary action up to and including dismissal. A copy of this letter will be placed on your personnel file.

26The focus of the Employer’s concerns that led to the 10-day suspension was on a sole proprietorship held by Mr. Norsworthy called Norsworthy Consulting Services (“NCS”) and whether he had adhered to the directions of the Deputy Minister when he was on a leave of absence that commenced in November 2007 (“the 2007 LOA”). Mr. Norsworthy registered NCS as a real estate consulting business in October 2007, which was over a year before he started with the Ministry. He referenced NCS in his resume when he applied for a position with the Ministry and on the many occasions when he applied for other positions within the Ministry. Under professional experience, the resume that he used as late as December 2010 includes the following: “Oct. 1988-Feb. 1989 Norsworthy Consulting Services Mississauga, Ont., Land Management and Leasing Consultant.” There is no indication in the resume as to whether NCS was active after February 1989.

27During his 2007 LOA, Mr. Norsworthy worked for Del Management Solutions Inc. (“DMS”) as a Senior Land Agent on a Hydro One project. His contract with DMS dated October 26, 2007, indicates that he was being offered a contract of employment and that one of his main responsibilities was to “meet with land owners on the Bruce to Milton corridor in order to advance negotiation of easement or purchase and sale agreements for assigned properties.” Given the duties he performed for the Ministry and the duties he would perform for DMS, Mr. Norsworthy requested a conflict of interest (“COI”) ruling relating to his employment with DMS. In the COI ruling dated September 17, 2007, Deputy Minister Jamieson found that Mr. Norsworthy’s proposed employment with DMS did have the potential to place him in a conflict of interest. DM Jamieson also concluded that the potential conflict of interest could be managed if Mr. Norsworthy and DMS complied with six conditions. Near the end of the COI ruling DM Jamieson advised Mr. Norsworthy as follows: “Should your employment situation while on leave change, you are required to request another ruling and await my decision prior to engaging in the activity.” Mr. Norsworthy and DMS did execute a COI plan. The 2007 LOA ended in September 2008 and Mr. Norsworthy returned to his position with the Ministry. There is no reference to NCS in any of the documentation relating to the 2007 LOA. Mr. Norsworthy applied for the 2007 LOA on the basis that he would be an employee of DMS and this was the basis upon which the Deputy Minister made the COI ruling.

28In 2010, Mr. Norsworthy requested another leave of absence. The Altus Group had contacted him to see if he was interested in a position as a Property Manager engaged in property acquisition work for a road widening project in the Region of Waterloo (“the Region”). Similar to the process he went through for his 2007 LOA, Mr. Norsworthy would be expected to provide details of the work he would perform while on the leave of absence and he would have to satisfy any conflict of interest concerns. In order to provide the Regional Director with the necessary information, he made an online contact with the Region to obtain the details of the contract and the scope of the job. To get to the information he required, it was necessary for him to act as if he was a bidder and to put in a name and phone number on the online form. Without much thought he put in the name of NCS and his Ministry office phone number on the online form, in addition to his home address. Although he did not intend to bid on the contract himself, the result of the method he used to get the relevant information was that NCS was placed on a current bidders list on the Region’s website as a company willing to provide real estate negotiation services for a particular contract.

29NCS first came to the attention of Mr. Plant in December 2010 when the Ministry was advised from more than one source that NCS was on a bidders list located on the Region’s website. Given the duties he performed for the Ministry as a Real Estate Officer, the listing of NCS on the Region’s website raised obvious conflict of interest concerns. Mr. Plant met with Mr. Norsworthy to discuss this matter on December 21, 2010. Mr. Norsworthy advised Mr. Plant about how NCS came to be on the Region’s bidders list. He explained that he had used the name of NCS without giving it much thought and that the use of his Ministry phone number was a mistake. Appreciating the Employer’s concern, Mr. Norsworthy indicated that he would have the NCS listing removed immediately and on that day he took steps which led to the immediate removal of NCS from the relevant bidders list. Mr. Plant believed Mr. Norsworthy’s explanation about his simply making a mistake in using his Ministry office phone number. As it turned out, Mr. Norsworthy subsequently withdrew his leave of absence request when the Altus Group was not the successful bidder on the project.

30At their meeting on December 21, 2010, Mr. Plant had advised Mr. Norsworthy that he would be following up with him at a later date and he did so by letter dated January 11, 2011, in which he noted that a COI determination had not been requested for NCS and he directed Mr. Norsworthy “to provide detailed information no later than January 18, 2011 with respect to Norsworthy Consulting Services required to support a conflict of interest determination by the Deputy Minister. If you decline to do so I will exercise my authority under ss 65(2) of the Public Service of Ontario Act, 2006 and refer the matter to the Deputy Minister myself.” Although Mr. Plant gave him a week to respond, Mr. Norsworthy responded in writing on the same day. Mr. Norsworthy indicated in his response the date when NCS was registered and that the purpose of the registration was to provide consulting services as a private unincorporated corporation. He then referred to the one contract NCS had secured before he had started to work for the Ministry. The last two paragraphs of his January 11, 2011 letter read as follows:

‘Norsworthy Consulting Services’ continued to exist but did zero business from December of 1988 until November of 2007, when a leave of absence from the ministry was approved with an approved conflict of interest plan. Accordingly, ‘Norsworthy Consulting Services’ worked within the conflict of interest plan and provided real estate services for the DSM Group, under contract to Hydro One Networks Inc. This contract to the DMS Group ended in September, 2008 and income to Norsworthy Consulting Services ended once more on that date.

I will continue to cooperate fully in your investigation and can attest that ‘Norsworthy Consulting Services’ has only been contracted during my tenure with the Government of Ontario during my approved leave of absence and under the conditions of the approved conflict of interest plan in effect during my leave of absence.

31Mr. Norsworthy testified that Mr. Plant gave him his January 11, 2011 letter at a meeting where NCS was discussed and that his written response simply repeated what he had told Mr. Plant at the meeting. Consistent with Mr. Plant’s testimony on this point, I find that Mr. Plant simply gave Mr. Norsworthy his letter requesting a response, without a meeting or any discussion of the matter.

32Mr. Norsworthy clearly indicated in this response that NCS provided real estate services for DSM during his 2007 LOA and that NCS was paid by DMS. By this time Mr. Plant had some knowledge of Mr. Norsworthy’s 2007 LOA given some material he had received through the efforts of Mr. B. Scanlon’s, Employer Relations advisor, but Mr. Norsworthy’s response caused him to review the circumstances of the 2007 LOA further, including the COI plan executed by Mr. Norsworthy. The absence of a COI ruling for NCS, the absence of any reference to NCS in connection with the 2007 LOA and Mr. Norsworthy’s January 11, 2011 response led Mr. Plant to make a further request for information and documents. Mr. Plant was trying to get some clarification about whether Mr. Norsworthy properly documented his 2007 LOA request and whether he failed to advise the Deputy Minister of any changes during the 2007 LOA. In a letter to Mr. Norsworthy dated January 31, 2011, Mr. Plant asked for a response to four matters, the fourth relating to the appearance of NCS on the Region’s bidders list. The first three matters in his request have particular relevance for the suspension grievance and read as follows:

1. We can find no reference to Norsworthy Consulting Services in the material that you submitted in 2007 relating to your conflict of interest plan and your leave of absence request. Can you clarify this matter?

2. Provide any and all correspondence, contracts, statement of work, invoices and any other documents related to your business/personal dealings with DMS Group, Hydro One Networks Inc., and any other companies or individuals for whom you have provided services, either directly as an individual or through Norsworthy Consulting Services or through any other entity from January 1, 1989 to date.

3. Please provide any and all tax filings (provincial and federal) for Norsworthy Consulting Services from 1989 to date.

33In his written response dated February 14, 2011, Mr. Norsworthy noted that “I provided my first letter to you with details regarding my employment with DMS Group without legal consultation, and may not have correctly described my employment.” He responded to the first three matters raised by Mr. Plant as follows:

1. Mark Norsworthy asked for the leave of absence.

2. I cannot provide the information demanded as this would compromise my personal information and also, the personal information of my spouse. This demand is unreasonable.

3. I cannot provide the information demanded as this would compromise my

personal information and also the personal information of my spouse. This demand is unreasonable.

34By letter dated April 26, 2011, Mr. Plant notified Mr. Norsworthy that a meeting would be held on April 29, 2011, to provide him with another opportunity to provide additional information to assist the Employer in its investigation. Mr. Plant summarized what had taken place thus far and at the end of the letter reminded Mr. Norsworthy that he was required to comply with the COI rules and reiterated that he would be referring the matter to the Deputy Minister.

35Mr. Norsworthy, Mr. Plant, Mr. Scanlon, Ms. M. Dawson, a Human Resources Advisor, and Mr. R. Loftus, a Union representative, attended the meeting on June 29, 2011. Ms. Dawson took notes of the meeting. Without detailing everything that was discussed, the features of the meeting that are particularly relevant can be summarized as follows. Mr. Plant opened the meeting by referring to how they got to that point and indicated that the Employer’s concern was with respect to the involvement of NCS with the 2007 LOA. He noted that the Deputy Minister approved Mark Norsworthy to work for DMS and that the Employer was seeking clarification as to whether NCS or Mark Norsworthy as an individual was working for DMS. Mr. Norsworthy replied that DMS did not hire NCS, that Mark Norsworthy was an employee of DMS and that NCS had nothing to do with the 2007 LOA. The Employer representatives indicated that they needed to know if DMS paid Mark Norsworthy or if it paid NCS. Mr. Norsworthy reiterated on a number of occasions that NCS was not paid by DMS and that Mark Norsworthy was paid. Mr. Norsworthy offered to provide an affidavit attesting to the fact that NCS did not make money from DMS, but this offer was rejected by the Employer. Mr. Scanlon advised Mr. Norsworthy that he had an obligation to disclose the existence of NCS to the Deputy Minister for a COI determination, whether NCS made money or not. He also indicated that the Employer required him to provide information about NCS’s activities and that they were not asking for his wife’s information. Mr. Plant also indicated that there is no need for him to provide his wife’s information or dollar amounts or his personal information. Mr. Norsworthy raised the question of the Employer getting a Court order. Mr. Scanlon indicated that the Employer is aware of confidentiality and privacy concerns and both he and Mr. Plant indicated that there are ways to protect those concerns. Mr. Norsworthy stated that he was scared about the request for the tax filings and that he still did not want to provide the tax information. Mr. Scanlon responded that if he did not have them, we can’t get them. When Mr. Plant told him that he had to self declare NCS, Mr. Norsworthy stated that he couldn’t because he had obligations to his marriage. The meeting ended with Mr. Plant indicating that he would revise his April 29, 2011 letter.

36When Mr. Scanlon indicated at the April 29, 2011 meeting that Mr. Norsworthy had an obligation to disclose NCS for a COI determination, he also stated that this was not a witch hunt. Mr. Norsworthy testified that he took this latter comment to mean that the Employer was indeed conducting a witch hunt. He indicated that Mr. Plant had told him in advance that Mr. Scanlon would attend the meeting as a way to intimidate him. Mr. Norsworthy described Mr. Scanlon’s conduct at the meeting as rude, abrupt and aggressive. He indicated that Mr. Scanlon had his fists clenched and glared at him the whole time. He stated that Mr. Scanlon was a professional bully who did intimidate him and created a climate of fear at the meeting. He indicated that there was no discussion about solving the issue, but merely an effort to punish him when the only thing he did not provide was his tax information. Mr. Plant testified that the meeting was a “little charged”, but that Mr. Scanlon was not rude and no one yelled. He stated that the meeting stayed professional throughout. He indicated that Mr. Norsworthy appeared uncomfortable during the meeting because his attempts to deal with the issue of whether NCS was paid by DMS was only to offer an affidavit and he was continually being told by the Employer that this would not resolve the issue. I have no doubt that Mr. Norsworthy felt that he was under some pressure at the meeting, but I am satisfied from the evidence about the meeting that his description of Mr. Scanlon’s conduct was considerably exaggerated. If anything, I suspect that Mr. Plant and Mr. Scanlon were somewhat frustrated because they did not believe Mr. Norsworthy when he said that NCS was not paid by DMS and because he was not prepared to provide documentary proof to support his position, other than an affidavit. Mr. Norsworthy’s comment that there was no attempt on the part of the Employer to solve the issue is inconsistent with statements of the Employer representatives at the April 29, 2011 meeting, as reflected the notes taken of that meeting. As will become evident, Mr. Norsworthy’s comment that the only thing he did not provide the Employer was his tax information is not correct.

37On May 9, 2011, Mr. Norsworthy went to Mr. Plant’s office to discuss the matter further. Mr. Norsworthy told him that he would not share any information as it pertains to NCS and again indicated that he was only prepared to swear an affidavit stating that NCS had made no income since he joined the Ministry. Mr. Plant told him again that an affidavit was not an acceptable solution and that the Employer needed some documentary proof to show whether or not NCS was paid by DMS. Mr. Plant told Mr. Norsworthy that the Employer wanted to get at the truth of this matter and that any document he presented need not reveal any personal information.

38In a letter to Mr. Norsworthy dated June 7, 2011, Mr. Plant did revise the Employer’s request as it related to tax information. The revised request was for Mr. Norsworthy “to provide all your tax filings (provincial and federal) for Norsworthy Consulting Services from 2004 to date.” The essence of Mr. Norsworthy’s June 9, 2011 response is as follows: “I am unable to supply copies of tax filings in the name of “Norsworthy Consulting Services” for the years 2004 to 2010 because no tax returns in this name were ever filed during the noted time period.”

39To address the general issue of a COI ruling for NCS, Mr. Plant sent an email to Mr. Norsworthy dated September 15, 2011, in which he offered him the opportunity to provide information for a COI determination and attached the appropriate form for him to complete. Mr. Norsworthy completed the form on September 19, 2011. He referenced many of the circumstances that have been set out above, including that he had often mentioned NCS during the course of his employment with the Ministry and that NCS has been dormant since February 1, 1989. The form was submitted to the Deputy Minister along with a briefing note from Mr. Plant. Deputy Minister Carol Layton provided her COI ruling on December 20, 2011. In essence, she determined that the appearance of a conflict of interest cannot be mitigated as long as Mr. Norsworthy owned NCS. She directed Mr. Norsworthy to divest himself from all involvement in NCS and to provide documentation to show that he had done so no later than January 20, 2012. Mr. Norsworthy complied with Ms. Layton’s direction by selling NCS to his wife for $1.00 and by providing the Agreement of Purchase and Sale to Ms. Viragos before January 20, 2012. The general COI ruling on NCS did not address the issue about NCS’s involvement with the 2007 LOA.

40Ms. Viragos, by letter dated February 27, 2012, advised Mr. Norsworthy that an allegation meeting would be held on March 2, 2012, to discuss the following two allegations: “that you were insubordinate when you continually failed to follow your manager’s direction to provide information with respect to your obligations as a public servant; that you were untruthful to your manager when you provided information on January 11, 2011, with respect to the work performed for DSM Group during your leave of 2007; and then on April 29, 2011, you provided information that contradicted the information provided by you on January 11, 2011.” At the meeting on March 2, 2012, Mr. Norsworthy again stated that NCS did not get paid by DMS and that only Mark Norsworthy was paid. He indicated that there were no income tax filings for NCS. He also indicated that his first response to the Employer about NCS was based on confusion due to time passing and confusion over what he was being asked. He also indicated that the questions from the Employer led him to think of himself and NCS as one, but after some reflection he realized that they were separate. It was after considering the circumstances and the usual factors and after consulting with others that Ms. Viragos decided to suspend Mr. Norsworthy for 10-days.

41During his opening statement on the 10-day suspension grievance, Union counsel advised that Mr. Norsworthy would say in his testimony that DMS made out cheques to NCS during his 2007 LOA. He advised that Mr. Norsworthy would explain the circumstances of how this came about. During his testimony, Mr. Norsworthy indicated that he was approached by someone in DMS’s payroll department about a couple of weeks after he had started and was asked how he wanted to be paid. After discovering that others on the job had directed DMS to pay their sole proprietorship, Mr. Norsworthy directed DMS to pay NCS. He indicated that apart from the reimbursement of expenses, DMS made out cheques to NCS which he deposited in a NCS bank account. He stated that he withdrew the money from the NCS account for his personal use and taxes. He indicated that he used NCS as a tax device in order to take advantage of some business deductions.

42Mr. Norsworthy testified that he was hired and entered into an employment relationship with DMS and that the 2007 LOA materials, including the COI plan, reflect this reality. He indicated that he and DMS complied with the six conditions that were set out in the Deputy Minister’s 2007 COI ruling. He also stated that NCS as a business entity did not provide any work for DMS, only he did, and that NCS was used only for tax purposes.

43During his testimony, Mr. Norsworthy explained some of the responses he gave to the Employer during the course of its investigation. With respect to his January 11, 2011, response, wherein he indicated that NCS provided real estate services for DSM and that NCS was paid by DMS, Mr. Norsworthy stated that he gave his response “off the top of his head” while under duress and stress which caused him to make incorrect references to NCS. He indicated that he was under duress and some stress due to the placement of NCS on the Region’s bidders list and that this caused him to use a poor choice of words in his initial response to the Employer. He stated that if he had more time, he would have referred to himself as employed by DMS and not to NCS because NCS was only a tax vehicle that did no business for DMS. He indicated that NCS did not solicit business and did not have any assets.

44When asked in chief about his February 14, 2011 response of “Mark Norsworthy asked for the leave of absence” to Mr. Plant’s request to clarify his written statement about NCS, Mr. Norsworthy stated that his intention was to convey that NCS had nothing to do with the 2007 LOA, but he also indicated that his response was too succinct. During cross-examination, he stated that his response “may have fallen short” in clarifying what he had written in his initial response on January 11, 2011, and he agreed that the Employer was entitled to a better explanation.

45Mr. Norsworthy testified that it bothered him when he told the Employer that NCS had not been paid by DMS, but he still maintained that NCS did not make money and was merely used as a tax device. He stated that NCS had not been paid even though DMS issued cheques in the name of NCS and not in his name because he controlled the NCS bank account and because in the end there was no money in the account because he took it out to pay himself and his taxes. When asked why he did not tell the Employer that DMS issued cheques to NCS and explain that NCS was just used as a tax device, he stated that he was scared at the time and was not able to describe what NCS was. He testified that he would have indicated in an affidavit that NCS had not made money because he believed that he made the money from DMS, not NCS.

46Mr. Norsworthy also testified about his decision not to provide the Employer with documentation, including any tax information. He indicated that he had discussed this issue with his wife and that he was simply not prepared to provide the Employer with this kind of private and personal information. He stated that a charted account friend of his wife had advised that he was not required to provide tax information unless it was pursuant to a Court order. He also indicated that this Employer request had created a big problem, but that he and his wife were able to work it out at the end of the day. Mr. Norsworthy acknowledged that the Employer had indicated that he could protect his private and personal information, but that it did not indicate how this would be accomplished and that because of various uncertainties, he could not foresee a satisfactory outcome for him and his wife by pursuing this avenue. When he was asked during cross-examination about his decision not to provide any documentation that would disclose whether NCS had been paid or not, such as pay stubs, Mr. Norsworthy stated that he had disposed of everything that was not essential by 2011. He agreed with the suggestion that he could have asked DMS for such documents, but he did not do so. During this proceeding, Mr. Norsworthy did ask DMS if it could provide him with his employment contract and DMS complied with this request on November 26, 2013.

47With reference to the suspension letter, Union counsel asked Mr. Norsworthy if he had intended to mislead the Employer and whether he understood that his actions may have led the Employer to that conclusion. Mr. Norsworthy responded by saying that he did not intend to mislead the Employer and again reiterated that he initially ruined his message because he was confused, that he did not have the necessary information at hand when he responded initially and that he did not understand the distinction between himself as an individual and NCS. Mr. Norsworthy stated that he did understand how his responses and actions may have led the Employer to conclude that he was intentionally misleading the Employer.

48I will first address the question of whether Mr. Norsworthy was dishonest and misled the Employer about NCS and its role during the 2007 LOA. In my view, it was the issue of dishonesty which primarily motivated the Employer to give Mr. Norsworthy with a 10-day suspension.

49Union counsel submitted that the Employer must show that Mr. Norsworthy’s responses to the Employer were motivated by a dishonest intention. He argued that Mr. Norsworthy misunderstood the nature of a sole proprietorship which led him to give different answers to the Employer. He submitted that Mr. Norsworthy believed that NCS was not active during the 2007 LOA and that he was using NCS merely as a tax device. Counsel submitted that Mr. Norsworthy was truthful when he said that NCS had not been paid because he believed the payment was for his personal use and not to remain with NCS. Counsel argued that Mr. Norsworthy may have been mistaken about all of this, but that his honestly held mistaken belief establishes that he did not intend to deceive the Employer.

50The essence of Mr. Norsworthy’s position is that he was not dishonest with the Employer because his responses to the Employer after January 11, 2011, were based on his understanding and honest belief that NCS did not perform real estate services for DMS and that NCS was not paid by DMS. After reviewing Mr. Norsworthy’s testimony in the context of the relevant circumstances, I have considerable difficulty in accepting this position.

51In response to Mr. Plant’s January 11, 2011, direction to provide detailed information about NCS, Mr. Norsworthy advised him in writing on the same day that NCS provided real estate services for DMS and received income from DMS for providing these services. Given the facts, it certainly appears that Mr. Norsworthy’s initial response was an accurate reflection of the role NCS played during the 2007 LOA. DMS made cheques out to NCS and Mr. Norsworthy took advantage of certain business deductions which can be justified only if the NCS, the business entity, was providing real estate services to DMS. I do not accept that the way Mr. Norsworthy worded his initial response was because he was under duress or stress, or because he was confused or did not have time to provide an accurate response, or because he did not understand the difference between NCS performing services as a business and his working as an individual under a contract of employment. Mr. Plant gave him a week to reply, but his decision to reply so quickly, more likely than not, resulted in his providing an accurate description of what he believed about NCS’s role during the 2007 LOA.

52It is quite likely that Mr. Norsworthy provided his initial response without giving any consideration to the details of his 2007 leave of absence request and COI plan, which after all took place many years earlier. Mr. Norsworthy had to turn his mind to these matters when Mr. Plant asked him to clarify his initial response about NCS because there was no reference to NCS during the 2007 LOA process. His clarifying response two weeks later was to simply write, “Mark Norsworthy asked for the leave of absence”. Given that there was no doubt that he asked for the 2007 LOA, this response was meaningless. To suggest that he fell short in clarifying his initial response, as he did during his cross-examination, is an understatement. I can appreciate the difficult position Mr. Norsworthy found himself in and how it led to such a response. He undoubtedly recognized that his disclosure of NCS’s involvement in his 2007 LOA might give to rise to questions about whether he had complied with his obligations during the 2007 LOA. There is little doubt that Mr. Norsworthy’s objective after his initial response to the Employer was to distance himself as much as possible from that response. This objective led him to respond in a particular way to further queries from the Employer.

53Apart from the question of whether NCS was providing real estate services to DMS and what Mr. Norsworthy believed on that issue, what I find most problematic is how he responded when he was asked by the Employer if NCS had been paid by DMS and how he explained his response during his testimony. Mr. Plant was interested in finding out whether DMS paid NCS or whether it paid Mr. Norsworthy. It was not a complicated question that the Employer was putting to Mr. Norsworthy. After his initial response and even as late as the allegation meeting, Mr. Norsworthy consistently responded that NCS had not been paid by DMS. Given that DMS issued cheques to NCS and the cheques were deposited by Mr. Norsworthy into an NCS bank account during the 2007 LOA, the correct and obvious answer to Mr. Plant’s question in my view was that NCS had been paid by DMS. Mr. Norsworthy’s assertion to the Employer that NCS had not been paid by DMS was nothing less than a complete fabrication and I am satisfied that Mr. Norsworthy knew this was the case when he gave that response. He testified that he was not being dishonest when he gave this response to the Employer because essentially he was the beneficiary of the payments from DMS. I find his testimony on this point incredible. It would be unreasonable to believe that NCS had not paid by DMS because the money eventually ended up going to Mr. Norsworthy and again I do not accept that Mr. Norsworthy believed that NCS had not been paid by DMS. It is of some significance that it was not disclosed that DMS issued cheques in the name of NCS until Union counsel noted this in his opening statement. Mr. Norsworthy did not tell the Employer during its investigation that DMS issued cheques to NCS and that this was simply a tax strategy. I do not accept that he failed to do this because he was scared, but rather because he understood that NCS had been paid by DMS and that he did not want to admit this to the Employer. It is with these considerations in mind that I find that Mr. Norsworthy was dishonest with the Employer during its investigation about NCS. I am satisfied that the Employer established on the balance of probabilities the Mr. Norsworthy intended to mislead the Employer with respect to the involvement of NCS in his 2007 LOA.

54I turn now to the question of whether Mr. Norsworthy was insubordinate for not complying with the Employer’s direction to provide it with documentation which would show whether NCS was active and, in particular, whether it had been paid. On this issue, Union counsel forcefully argued that the Employer’s demand to produce personal and private information, such as tax information, was unreasonable in the circumstances and that Mr. Norsworthy’s refusal to provide the Employer with documents containing such information cannot justify a disciplinary response in the circumstances. Counsel submitted that tax information falls within the definition of “personal information” in the Federal Privacy Act and just as an employee cannot be disciplined for refusing to consent to the release of medical information, he argued that the Employer cannot discipline Mr. Norsworthy for refusing to provide tax information. Counsel submitted in the alternative that even if Mr. Norsworthy’s consent to the release of personal information is not required in the circumstances, the Employer’s demand for such information must be reasonable, which includes a consideration of alternative ways to get private information. Counsel referred to the principles of the surveillance cases and argued that the Employer did have an alternative here and that was to refer the matter to the ethics executive as contemplated by section 2(1) of Ontario Regulation 383/87. Counsel also argued that Mr. Norsworthy was not obliged to accept the Employer’s general offers to redact documents and to otherwise protect his personal and private information in the absence of the Employer explaining in clear terms how his personal and private information would be protected. Counsel also referenced the way in Mr. Plant made his demand for documentation in that he told Mr. Norsworthy that his failure to provide the Employer with documentation on NCS would cause Mr. Plant to refer the COI issue to the Deputy Minister. Counsel argued that there was no option for the Employer to discipline Mr. Norsworthy for not providing documentation because the Employer had indicated his failure to do so would result simply in the Employer itself referring the COI issue to the Deputy Minister. Counsel noted that the Employer’s investigation about NCS overlapped with its investigation into Mr. Bremner’s complaint and argued this improperly influenced the Employer in its decision to discipline Mr. Norsworthy.

55Mr. Norsworthy contends in his testimony that the Employer was demanding that he produce documentation that would disclose his and his wife’s personal and private information and that the Employer was not entitled to compromise their privacy rights with such demands. He also testified that he was not confident that he and the Employer would be able to agree on ways to protect his personal information. Although I appreciate why Mr. Norsworthy would want to shift the focus to the conduct of the Employer, the evidence indicates that the Employer was not interested in obtaining his or his wife’s personal information. At the April 29, 2011 meeting, Employer representatives clearly conveyed to Mr. Norsworthy that they were not after information relating to his wife. They told him that they were not interested in how much he was paid. They told him that they were interested in sorting this matter out so that they all could put it behind them and that the Employer had experience in protecting an employee’s personal information. When Mr. Norsworthy advised that Mr. Plant at their brief meeting on May 9, 2011, that he would not provide any information about NCS, Mr. Plant again made it clear that the Employer was not seeking any of his personal information. At no time did Mr. Norsworthy ask what specifically the Employer would do to protect his personal and private information. I agree with Employer counsel’s submission that there was not a more thorough discussion of how Mr. Norsworthy’s personal and private information could be protected because Mr. Norsworthy had decided not to disclose any documentation about NCS to the Employer, making the protection of his personal and private information academic.

56The Employer’s insubordination allegation against Mr. Norsworthy was not based on his refusal to provide tax information or any personal information. The Employer formed the view that Mr. Norsworthy had provided it with inconsistent versions of what role NCS played during the 2007 LOA and it was not prepared to accept Mr. Norsworthy’s word that NCS had not been active and had not been paid during the relevant period. Given its general concern about a possible COI issue and a concern about whether Mr. Norsworthy complied with his obligations during the 2007 LOA, the Employer wanted to determine which version Mr. Norsworthy had provided was true and it was for this reason that it directed Mr. Norsworthy to provide documentation to support his assertions about NCS. In my view, the Employer’s demand for Mr. Norsworthy to provide it with such documentation was reasonable in the circumstances. With respect to the time period of his 2007 LOA, Mr. Norsworthy had banking records for the DMS payments or he could have approached DMS to get payment documentation which would have responded to the Employer’s demand for additional information about NCS’s role. Such documents could have been easily redacted to protect any personal information. The fact that the Employer had indicated that it would refer the general COI issue to the Deputy Minister if Mr. Norsworthy did not comply with its demand for further information did not preclude it from exercising its management right to discipline an employee for failing to comply with a direction. I am also satisfied that there is no indication in the evidence that the Employer’s decisions about discipline for Mr. Norsworthy were influenced by the fact that the discipline investigations overlapped. In my view, Mr. Norsworthy’s decision not to comply with the Employer’s direction to provide it with additional information constitutes culpable conduct in the circumstances.

57Mr. Norsworthy had a duty to be honest with the Employer. He also had a duty to comply with a reasonable demand for information. As noted above, I have found that Mr. Norsworthy was dishonest when he intentionally misled the Employer about NCS and that he was insubordinate when he failed to comply with a reasonable request to produce information. There are no mitigating circumstances here that would support the substitution of a lesser penalty. In this regard, I note that Mr. Norsworthy continued to maintain that NCS had not been paid by DMS when he testified. He asserted that the Employer’s efforts to get to the bottom of an important matter relating to a COI issue was merely a witch hunt directed against him. He did not take any real responsibility for his conduct and he was not genuinely remorseful. It appears that his only regret related to how he worded his initial response to the Employer about NCS. The nature of his repeated dishonesty in failing to disclose the role of NCS during his 2007 LOA by itself would likely justify the Employer’s disciplinary response.

59For the foregoing reasons, Mr. Norsworthy’s reprimand grievance dated August 23, 2011, his ten-day suspension grievance dated April 16, 2012 and his harassment and discrimination grievance are hereby dismissed.