GSB#2017-0402
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
The Association of Management, Administrative and Professional Crown Employees of Ontario (Botari)
Association
- and –
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE ASSOCIATION
Marisa Pollock Goldblatt Partners LLP Counsel
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Legal Services Branch Counsel
HEARING
February 12, 2018
Decision
1This is a discharge case. This decision determines a preliminary issue with respect to production.
2At the time of his discharge, the Complainant was a Regional Program Coordinator with the Ministry of Labour (“MOL”). He was also a reservist with the Canadian Armed Forces of the Department of National Defence (“DND”). As a reservist he was paid for the performance of certain duties. DND conducted an investigation into allegations the Complainant had claimed pay from both DND and MOL for the same periods of time. The Employer seeks production of the investigation report prepared by DND.
3The Employer’s particulars provide greater context for the production issue:
The Complainant’s employment was terminated on March 16, 2017 following an investigation into conduct which included misrepresenting work activities and hours as a Ministry of Labour employee while engaging in activities for an external employer.
The external employer was the federal Department of National Defence, Government of Canada. During the relevant time period, the Complainant performed work for both the Ministry of Labour as well as the DND.
In November of 2014, the Ministry was made aware by DND that the Complainant was being investigated by DND for work hours claimed that were not authorized and that many of the work hours claimed were for the same work hours that the Complainant ought to have been performing Ministry work.
At that time, the Ministry did not commence its own investigation so as not to interfere with DND's criminal investigation. The Ministry commenced its investigation in March, 2015, once it received notice by the DND that it could do so. The Complainant was suspended for the duration of the Ministry investigation until the date of his dismissal. As part of its investigation, the Ministry investigator attended Canadian Forces Base Borden to review DND's files for corroborating information. DND indicated that the Complainant may have falsely billed DND for time he was not carrying out DND duties.
In total, for the period 2010 to 2013, it was determined that there were 171 days where the Complainant claimed to have worked for DND for time periods when he ought to have been working for the Ministry. These dates were obtained from a review of the DND records and cross referenced with the Complainant's Ministry work records. The dates in question are set out at Tab 5 of the Employer's Book of Documents, Vol. 1.
In January, 2016, the Ministry investigator issued a report with its findings. The report is at Tab 2 of the Employer's Book of Documents, Vol. 1, and the relevant facts are set out therein. The report focused on those dates for which the Complainant was confirmed by DND to have been physically present with DND while being paid by both the Ministry and DND. The report focused on 11 specific incidents, the particulars of which are found within the report and at Tab 3 of the Employer's Book of Documents, Vol. 1.
Following receipt of the report, the Ministry was aware that charges had been laid by DND but that the decision to prosecute had yet to be made. Throughout 2016, the Ministry made repeated inquiries regarding the status of the charges against the Complainant as well as repeated efforts to obtain documentary information from the DND in relation to its investigation. The Ministry was advised in December 2016 that the DND prosecutor would not be proceeding with the charges. In addition, by early 2017, the Ministry realized that its efforts to obtain documentary evidence from DND would not prove fruitful.
An allegation meeting was held with the Complainant on March 9, 2017. The management script for the meeting as well as the meeting notes are found at Tab 6 and 7, respectively, of the Employer's Book of Documents, Vol. 1. During the meeting, the Complainant conceded that he claimed with DND the time found at Tab 5 of the Employer's Book of Documents, Vol. 1, and the time found in the report at Tab 2 in relation to the 11 incidents. With respect to the 11 incidents set out in the report, during the course of the allegation meeting, the Ministry provided the Complainant with the benefit of the doubt with respect to indents 2, 7, 8, 10 and 11.
Mr. Ken Fox, Director, Central West Region, was the management representative at the allegation meeting and also the decision maker with respect to the termination of the Complainant's employment. With respect to incidents 1, 3, 4, 5, 6 and 9, Mr. Fox concluded that, based upon the information in the report as well as the responses from the Complainant in the allegation meeting, the Complainant engaged in work for DND while he was on duty and being paid by the Ministry.
With respect to incidents 6 and 9, the Complainant indicated that he had an agreement with two managers (Jody Young and Armindo Tomas) to the effect that "the Military would provide the funds, MOL would provide the time." The two managers do not agree that there was any such agreement and further would not have approved a scenario where the Complainant would be paid by both DND and MOL and where the Complainant is not engaged in work for the Ministry.
With respect to the balance of the 171 days at Tab 5 of the Employer's Book of Documents, Vol.1, the Complainant indicated that the hours recorded did not mean that he actually worked during the hours that were recorded on the DND pay sheets that he submitted. Given that Mr. Fox had been advised by DND that the hours claimed by the Complainant were unauthorized, he requested that the Complainant provide him with a contact at DND who could corroborate the Complainant's story. The Complainant refused to provide the name of a contact person.
Based upon the information provided by the Ministry investigator and information relayed by DND, Mr. Fox concluded that the Complainant engaged in time theft with respect to incidents 1, 3, 4, 5, 6 and 9. Further, Mr. Fox did not find the Complainant's explanation with the respect to the remaining dates to be credible given the DND's position that the time was unauthorized and that the Complainant refused to provide a contact person who could corroborate his version of events. Given the nature of the Complainant's job, and that he is out in the field for most of his working day without supervision, and is entrusted to use his time for authorized purposes, Mr. Fox concluded that the employment relationship had been irreparably harmed. The dismissal letter is at Tab 1 of the Employer's Book of Documents, Vol. 1.
4For the purposes of this decision, I assume the facts stated in the MOL’s particulars are true and capable of proof. Incidents 1, 3, 4, 5, 6 and 9, the six incidents relied upon by Mr. Fox related to the following dates: February 10-11, 2011; December 5, 2011; December 6, 7, 8 and 9, 2011; January 31, February 1, 2 and 3, 2012; March 27, 28, 29 and 30, 2012; and June 11, 12, 13, 14 and 15, 2012 (the “six incidents”).
5The Association argues the MOL’s request for production of the DND Investigation Report is in the nature of a fishing expedition and should be refused. The Association asserts the MOL’s decision to terminate the Complainant’s employment was based on the six of the 11 incidents referenced in the MOL’s particulars. The entire focus of the Report generated by the MOL’s investigators (the “FIT Report”) was focused on the eleven incidents. While the MOL made reference to the balance of the 171 days in issue (the “additional days”) during the allegation meeting, the Association argues the MOL had in fact no evidence when it made its decision to terminate the Complainant to show he had improperly claimed pay from both employers for those days. The Association asserts merely making reference to such an additional “kitchen sink” allegation without details is insufficient to constitute a proper grounds or alternatively shows bad faith on the part of the Employer in making the decision to terminate. The Association argues the MOL is seeking the DND Investigation Report not to support a case for termination based on the Complainant being paid by both employers for the additional 171 days, but rather to determine if it has such a case. This, the Association argues is an improper use of the arbitration procedure. Further, the Complainant is prejudiced by having to address these claims many years after the fact.
6I am not persuaded by the Association’s argument. The MOL had been told by the DND their investigation uncovered 171 days on which the Complainant had been paid by both employers. The DND provided the MOL with a list of those days and further information with respect to the 11 incidents, but in essence no other information with respect to the additional days. The MOL in turn provided a list of the days to the Complainant within the context of the allegation meeting and invited the Complainant’s response. Discussion of the additional days appears to have been over half of the meeting. The fact the MOL was unable, despite its efforts, to obtain supporting documentation from DND prior to its decision did not preclude it from relying on the information which it had as asserted grounds for termination. Whether the MOL in fact had grounds for termination and acted in good faith is a matter to be proved in these proceedings. Once it learned of the allegation the Complainant had claimed payment from another employer for days for which he had also been paid by it, the MOL acted with reasonable dispatch in disciplining the Complainant. The degree to which the passage of time may affect the Complainant’s ability to respond to allegations with respect to a specific day is a factor to be considered in weighing the evidence.
7I conclude, therefore, that documents related the additional days (and the six incidents on which the MOL also relied) are arguably relevant and properly subject to production orders.
8I turn now to the DND Investigation Report itself. I note the Complainant has obtained a redacted copy of the Investigation Report from the DND and has shared it with counsel for the Association. The copy is apparently marked “Protected B”, which counsel for the Association asserts precludes the Complainant from sharing it with anyone else.
9Jean-Luc Haché, the DND investigator who completed its Investigation Report, attended the hearing and gave some evidence with respect to his investigation and interactions with the MOL. It appears the DND is prepared to provide a redacted copy of its investigation report to the MOL if ordered to do so. That process of redaction by M. Haché (and approval by the JAG) has not been completed and will take some time as the DND Investigation Report is approximately 1,300 pages long.
10Counsel for the MOL advises the DND Investigation Report includes copies of the Complainant’s time sheets in relation to the 171 days and copies of expense claims and other documents which suggest the Complainant was “physically” at work for the DND on the dates of the six incidents. These documents are arguably relevant to these proceedings. I am not satisfied at this point, however, the MOL has established the balance of the DND Investigation Report is arguably relevant to these proceedings. For example, it is not apparent why the DND investigator’s conclusions, whatever they might have been, will be of any relevance to these proceedings. Excising them from consideration at this point will make the production request which has been made of the DND less onerous.
11Accordingly, I direct M. Haché to provide a redacted copy of the Complainant’s time sheets in relation to the 171 days and copies of expense claims and other documents which suggest the Complainant was “physically” at work for the DND on the dates of the six incidents.
Dated at Toronto, Ontario this 14th day of February 2018.