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, Training and Skills Development)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock and Daniel Sheppard Goldblatt Partners LLP Co-Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 6, 12 and 23, March 7, October 26 and 29, November 16 and 30, 2018, February 7, May 1 and 2, June 4, 13, and 24, July 8 and 10, and August 13, 2019

Decision

1The issue in this case is whether the discharge of the Complainant from his employment with the Ministry of Labour, Training and Skills Development (“MOL”) on March 16, 2017 was for just cause.

2At the time of his discharge, the Complainant was a Regional Program Coordinator (“RPC”) with the 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. The MOL terminated the Complainant’s employment on the basis he claimed compensation from both the MOL and the DND for the same blocks of time during the period September 2010 to January 2013. The Complainant denies any impropriety.

3The MOL’s allegations relate to 171 days for which the Complainant was paid for working for the MOL and which were also listed on pay sheets he submitted to the DND in order to receive pay from the DND¹. There is no dispute the Complainant was paid by the MOL for these days as work days. The MOL’s position is the Complainant worked for the DND on those same dates and claimed and received pay for those days from the DND.

4The dates in question may be divided into two categories. The first category consists of dates for which the MOL’s evidence consists, in essence, only of the DND pay sheets. The Association argues the MOL has failed to prove the dates and times shown on the DND pay sheets relate to dates and times that work was performed for the DND. The Complainant testified he did the work in question on evenings or weekends.

5The second category of dates are those for which there is other evidence that the Complainant was performing work for and paid by the DND on the actual date in question. All of these dates relate to training sessions, the cost of which was paid for by the DND. The Association does not dispute the Complainant was paid salary by the DND for these dates. The Association contends, however, the Complainant was authorized to attend the training sessions by his managers. The MOL denies the managers authorized the Complainant to attend the training sessions. In the alternative, the MOL argues the authorization was given without awareness the Complainant would also be paid for the time by DND, and that in any event the Complainant was not entitled to be paid twice.

The Proceedings / Evidence

6The proceedings in this case were protracted. A number of days were spent on matters which need not be recounted here. Ultimately, only part of the evidence is relevant to the question of whether the MOL has proven cause for termination. Some of the evidence in examination-in-chief took the form of Declarations with the result that some of it is quoted in this decision on a verbatim basis.

7The events in issue took place between September 2010 to January 2013. The hearing of this matter commenced February, 2018 and evidence was completed in July, 2019. Given the passage of time, it is not surprising that the witnesses were unable to remember certain incidents or events with precision.

The Complainant’s Work with the MOL

8At all relevant times, the Complainant worked out of a Newmarket office of the MOL as an RPC, supporting a team of the Ministry’s Industrial Health and Safety Program (“IHSP”). As an RPC, his duties consisted primarily of providing technical support and assistance to the inspectors who were members of the IHSP team. Sometimes he would accompany an inspector on a field visit. He would review investigation briefs prepared by the inspectors. He would provide internal training and quality assurance assessments of staff. He also would deliver external stakeholder presentations. And, he would be the person contacted by the Deputy Minister or Minister’s office to provide information in response to media or other inquiries.

9On any given day he might or might not be in the office. He could also be in the office for part of the time and in the field for part of the time. Approximately 50% of his time would be outside of the office. He might be attending Provincial Committee meetings in Toronto. He might be delivering a presentation to external stakeholders. On occasions, he might work from home, for example if he had a lot of investigation briefs to review. He was required to be available by phone and if he was going to be absent for the day he was to notify the manager to whom he reported and arrange for someone else to cover for him.

10The Complainant worked on “Flex Time”. Reference was made to a document which set this out, but it was not placed into evidence. This meant the Complainant was to be available during core business hours, but that he basically set his own schedule. Unlike the inspectors, he was not required to record his work on an “activity sheet”. Rather, he worked on an “honour system”. The Complainant described his understanding of “flex time”. As long as he got his work done and put in at least 36.25 hours per week he considered himself to have worked a full week. He never claimed overtime. If he completed his work over Monday to Thursday, then in his mind he was not required to work on the Friday, although he would remain available through his BlackBerry. In cross-examination he confirmed this was his view, but stated that he never in fact had worked only four days out of five in a workweek.

11Like many other members of the Ontario Public Service, the Complainant would confirm his attendance at work for the MOL by logging into “WIN”. WIN is an exception-based system. Employees enter absences from work due to vacation, leave, sickness or other reasons. If an employee does not enter an absence for a particular day, WIN treats the employee as present at work. On a monthly basis, employees confirm on WIN that the absences shown are correct and that they were otherwise at work. The employee’s supervisor will log into WIN and confirm attendance.

12During the relevant period of time, the Complainant was also active in AMAPCEO. This is reflected in his “Performance Development Plan and Evaluation Form, 2012-2013” which records the following activities: AMERC (AMAPCEO Ministry Employee Relations Committee) Co-Chair - seven meetings (14 days); AMAPCEO Labour Chapter Chair and Chair of Provincial Council - six meetings (12 days); Chair of the AMAPCEO Constitutional Review Committee - seven meetings (10 days); AMAPCEO Conferences (H&S, Workplace Rep and Annual Conference) - three meetings (six days); Workplace Representative Duties - two days; other AMAPCEO Duties - mobilization and information (three days). His activities with AMAPCEO quite frequently required him to be away from the workplace. His MOL supervisors would usually, but not always, be advised of these absences as a result of an email from AMAPCEO requesting the Complainant’s absence for a particular duration related to association matters. The Complainant was also entitled to a certain number of hours per month which he could allocate to assisting Association members in other areas.

13There were no performance issues with respect to the Complainant’s work. The same 2012-13 Evaluation Form provided three choices for the evaluation of an employee’s performance: Met, Met Most and Not Met. The Complainant’s performance was marked as Met across all categories.

14In the result, the Complainant’s absence from the office on any given day would not necessarily give rise to concerns that he was not performing work for the MOL during core business hours.

The Investigation Process

15The MOL was contacted by the DND in November, 2014. The MOL was advised the DND was conducting a confidential investigation into the possibility the Complainant had claimed pay from both the DND and the MOL for the same hours of work. The details of the DND’s investigation are not relevant to this decision. It suffices to note the DND requested (if not directed, on threat of prosecution) the MOL to refrain from commencing any investigation of its own so as not to compromise the confidentiality of the DND investigation. The MOL complied until told by the DND on or about March 5, 2015 that although the DND investigation was ongoing, the MOL might commence its own investigation. On March 12, 2015 the MOL placed the Complainant on suspension with pay pending the outcome of its own investigation.

16The MOL’s investigation included a review of all available electronic records in relation to the Complainant by a Forensic Investigation Team (“FIT”) of the Internal Audit Division of Treasury Board Secretariat. Among other things, the FIT reviewed emails, WIN and the Complainant’s calendar in Outlook. For the purposes of its own investigation, the MOL wished to obtain time and expense records from the DND. The MOL was advised by DND investigators that the records would be provided after they became publicly available in the context of an anticipated decision by the Judge Advocate General’s office to prosecute the Complainant. That decision was repeatedly delayed. Ultimately in December, 2016 the MOL was informed the Judge Advocate General’s office had decided not to proceed with prosecution. Accordingly, the DND continued to deny the MOL access to its records. (The MOL only obtained access to the DND’s records as a result of an earlier order in these proceedings.)

17Meanwhile, the MOL was faced with the fact that the maximum period of suspension pending investigation permitted by the Public Service of Ontario Act is two years. On March 9, 2017, three days before the second anniversary of the suspension of the Complainant, the MOL convened a meeting to present the Complainant with its allegations. In attendance at the meeting were: Ken Fox, Director Central West Region, to whom the Complainant reported at that time, and Max Milantoni, a Regional Program Services Manager as note taker on behalf of the MOL; and the Complainant, and workplace representative Sally Jurcaba on behalf of the Association. At the conclusion of the meeting, Fox removed the Complainant from suspension and assigned him home duties. On March 16, 2017 Fox convened a further meeting during which the Complainant was given a letter terminating his employment. The Association does not argue the MOL failed to act in a timely manner or failed to exercise due diligence in its pursuit of information from the DND.

The Legal Framework for Evaluating the Evidence

18Prior to discussing the evidence with respect to the allegations on which the MOL relies, it is useful to set out the applicable legal principles. The MOL took no issue with the Association’s assertion that they are set out in my decision in Assn. of Management Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of Government and Consumer Services) (Bhattacharya Grievance) 2016 CanLII 17002 (ON GSB), 2017 CanLII 21225 (ON GSB), [2016] O.G.S.B.A. No. 29, 2016 CarswellOnt 5035, 269 L.A.C. (4th) 337.

19The burden of proof lies upon the employer. The standard of proof is the balance of probabilities. The evidence must be scrutinized with care to ensure that it is sufficiently clear and cogent to meet the balance of probabilities test: Bhattacharya para 49.

20As the MOL’s case is partially based on circumstantial evidence, the following comments from Bhattacharya are also apt:

56As this is a case of alleged unjust dismissal, the burden of proof lies upon the employer throughout. To discharge that burden in a case of circumstantial evidence, the inference which an employer asserts should be drawn must be more likely than not on the facts established by the evidence as a whole on a balance of probabilities, and of course such evidence must be clear and cogent. It is not sufficient that the inference asserted by an employer is plausible, the most plausible of alternative explanations or even the only inference offered. The issue is always whether the inference asserted by an employer is more likely than not on the facts as found. If it is, that there are other inferences which can be drawn is of no legal consequence.

57Conversely, if the inference asserted by an employer is not more likely than not on the facts as found, that there is no other alternative explanation is also of no legal consequence. … [I]t is not the role of the arbitrator to “solve the mystery”. Indeed, in my view, an arbitrator must be careful of the natural human inclination to attempt to arrive at an explanation for the facts. A focus on arriving at an explanation can direct attention away from the legal question of whether the explanation is more likely than not on the evidence. The role of the arbitrator is not to arrive at an explanation of the facts per se, but rather to consider what inference or inferences, if any, are more likely than not on those facts.

[Emphasis in original.]

21The Complainant’s credibility is at issue in this case. In assessing his credibility I am mindful of Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), cited at para. 51 of Bhattacharya:

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

22It is also important to bear in mind that a finding of credibility is not evidence. As stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41, referenced at t para. 70 of Bhattacharya:

[A]n unfavourable credibility finding against a witness does not, of itself, constitute evidence that can be used to prove a fact in issue.

23I would also make the following observation. The passage of time, and its inevitable impact on the ability of witnesses to recall events, may make it more difficult for the MOL to prove its case, but it does not relieve it of its obligation to do so, nor change the standard of proof which it must meet.

The Allegations Based on DND Pay Sheets Alone

24At all relevant times the Complainant was a Class A Reservist. Class A Reservists are part-time members of the DND who are paid a salary based on the number of hours they are on duty in a given day. A Class A Reservist is paid a half-day’s pay (also referred to as a “session rate”) for a day if on duty for fewer than six hours and a full-day’s pay if on duty six hours or more, up to and including 24 hours. Class A Reservists indicate the hours they were on duty by using a “Reserve Force Basic Attendance Register”, also referred to as a “time sheet”, “parade sheet”, “CF 895” or, the term which I have chosen to use, “pay sheet”. The pay sheet refers to all on duty hours as “training”. There is a place on the pay sheet for the Reservist’s signature.

25For the dates in question, the Complainant did not indicate on WIN that he was not at work for the MOL for the same hours that he had entered on a DND pay sheet (in most cases he indicated he was working 0800 to 1600 hours on the pay sheet). The dispute between the parties is the significance, if any, of the dates and times recorded on the DND pay sheets. In essence, the MOL’s position is that those dates and times are expected by the DND to be the actual dates and times the work was performed. The pay sheets thus constitute at least prima facie proof the Complainant worked for the DND on days for which he also claimed to have worked for and was paid by the MOL. The Association’s position is the MOL has failed to prove there is a correlation between the dates and times recorded on pay sheets and the dates and times on which duties are performed. In particular, there is no such correlation with respect to the tasks performed by the Complainant recorded on the pay sheets in question.

26Four witnesses gave evidence with respect to the DND Pay System for reservists. One of these witnesses was a full time member of the DND with no direct knowledge of how reservists were paid. Neither party made reference to his evidence in final argument. Accordingly, I do not find it necessary to comment on it further. The other three witnesses were: Lieutenant Colonel Gregory Stasyna (retired), called by the MOL; and Corporal William McConnell (retired) and the Complainant, both called by the Association.

27At the relevant times, Stasyna was the Commanding Officer for 32 Signal Regiment which included the Borden Squadron to which the Complainant was assigned. In his evidence in examination-in-chief, Stasyna stated:

The dates and times recorded on the time sheets (Register) are to be the actual dates and times during which the Reservist was on duty. I am not aware of any practice that existed during my time as Commanding Officer of 32 Signal Regiment where a Class A reservist would be permitted to claim to be on duty for days or hours that were not actual days and hours worked. Equally, there was no practice, and I can think of no reason, for a Reservist to be on duty for a specific day as well as time of day and number of hours, but to then record a different day and/or different number of hours or time of day on a time sheet.

28In cross-examination, Stasyna described in greater detail the process for approval of pay sheets and his role in it. He, or a subordinate officer to whom he had delegated authority, was responsible for signing the pay sheets to “certify” under section 34 of the Financial Administration Act that the personnel listed on the pay sheet had performed the duties for which pay is claimed. The processing of pay sheets before and after they were presented to an authorized signer, however, was principally handled by Resource Management Support Clerks (RMS Clerks) who worked in the Orderly Room. Stasyna conceded an Orderly Room Clerk would have a greater understanding than he of the circumstances in which a reservist would be entitled to a half-day’s versus a full-day’s pay and the rules and practices governing the pay sheets.

29McConnell had decades of experience as an Orderly Room Clerk, including for 32 Signal Regiment during part of the relevant time. He had worked with a variety of rules applicable to the processing of pay, “including the Queen’s Regulations and Orders (QR&Os), Canadian Forces Administrative Orders (CFAOs), Defence Administrative Orders and Directives (DAODs), the Compensation and Benefit Instructions (CBIs), and the Canadian Forces Temporary Duty Travel Instructions (CFTDTIs), as well as standard practices and procedures that existed in the units where [he] worked.” His responsibilities included the processing of pay sheets for Class A Reservists, such as the Complainant.

30In his declaration, McConnell described the payment process as follows:

The process for receiving payment for Class A Reserve Service follows at least three steps. First, members must fill out a CF 895 Reserve Force Basic Attendance Register – often referred to as a pay sheet – and submit it to the orderly room. Second, the pay sheet must be approved by an individual with authority under s. 34 of the Financial Administration Act, who is responsible for verifying that the member was properly authorized to perform the training or duty. Third, the information on the pay sheet must be entered into a computerized payroll system called the Revised Payment System for the Reserves (RPSR) by an RMS Clerk.

In cross-examination, it became apparent that in practice the second and third steps are reversed. That is, contrary to McConnell’s declaration, the information on the pay sheet is entered into the RPSR system by the RMS Clerk, prior to certification by someone with s. 34 authority. This error was repeated consistently throughout McConnell’s declaration. In cross-examination, McConnell also made reference to correcting entries being made if the amount of pay previously entered into the RPSR (i.e. half-day or full-day) had to be adjusted after the pay sheet had been reviewed by the individual with section 34 authority. Thus, it appears McConnell’s declaration described the theory, while his evidence in cross-examination described the practice with respect to the payment process. Counsel for the MOL points to this discrepancy as a reason to prefer the evidence of Stasyna to McConnell. I disagree. It was apparent throughout that McConnell was far more knowledgeable than Stasyna about the way in which the pay system worked. This is consistent with Stasyna’s concessions in cross-examination about instances in which someone from the Orderly Room would have greater understanding of the system than he had. Where McConnell’s evidence conflicts with that of Stasyna, I have no hesitation in preferring it.

31McConnell explained the pay sheet was designed for use when a group of Class A Reservists attend a fixed location for a fixed period of time for a fixed purpose.

One example of this would be Thursday Night Parades at 32 Signal Regiment. Every Thursday from 7:00 pm until 10:00 pm (1900-2200 hours) members of 32 Signal Regiment would attend at CFB Borden. The term “Parade” is often confusing for a civilian audience. Members did not actually engage in military-style parades on Thursdays. More often than not Thursday Night Parades involved members attending at informational/educational lectures put on by members within the unit. Because the timing and nature of the duty is known in advance by the unit, an RMS Clerk – usually me – would pre-prepare a CF 895 ahead of time.

In essence, for a Parade Night, an RMS Clerk would pre-populate the fields on the pay sheet for: date, authorized training time, whether it was a “day” or a “session”, the unit name, the financial coding, and possibly even the names of the members whom it was anticipated would attend and the name of the officer whom it was anticipated would certify the attendance. An individual member would only need to sign his or her name, and even failure to do that might not preclude processing for payment by McConnell if he had seen the member in attendance on the parade night in question. (McConnell indicated that members were also supposed to fill in the “time in” and “time out” boxes on the sheet, but in practice often failed to do so and still were paid.)

32The same pay sheet forms are used by an individual member when the member has undertaken training or duties on their own, or has forgotten to sign the group form on Parade nights. In those instances, the member would be responsible for filling out more of the fields themselves. Examples include taking courses at civilian training facilities or working from home.

33McConnell described how this can result in discrepancies between the dates and times entered on the pay sheet and the dates and times when the duties were performed:

The dates on forms do not necessarily reflect the dates or times the training or duty was actually performed. Ideally, the forms are submitted soon after the training or duty is performed. But, if a member were to forget to submit a form, they could always submit one for payment at a later date. As long as the form was signed off by someone with section 34 authority, I would process it. Ideally a member would put the actual date and times onto their form, but there were instances where members told me that they could not remember the specific date or times and would use their best guess. Again, as long as someone with section 34 authority confirmed that the work was in fact authorized and performed, I would process the form.

While the CF 895 form itself has space to include dates and times, there is no military rule that I am aware of – including under the QR&Os, CFAOs, DAODs, CFTDTIs or CBIs – that prohibits a member from writing down dates or times on a pay sheet other than the actual dates or times on which training or duty was performed. What would be prohibited would be if a member put in a duration of 6 hours or more when, in fact, they performed training or duty of less than 6 hours.

34McConnell also discussed situations in which he “would not expect the dates or times listed on a pay sheet to actually reflect the dates or times when a member was training or performing the duties for which they are receiving payment.” He noted section 204.51(2) of “CBI Chapter 204 Pay Policy Officers/Non-Commissioned Members” permits “cumulative periods of duty or training considered in the determination of [half-day or full-day’s pay] may be accumulated within a period extending beyond a calendar day”. The pay sheet is not designed to permit the recording of the multiple dates on which such cumulative work was performed, and in his experience, McConnell stated, this information is not recorded on a pay sheet. As a result, a pay sheet will show one date for the performance of work which has in fact been performed over multiple dates.

35McConnell gave evidence with respect to the type of assignments which could result in such cumulative periods of work performed over several days.

For example, in my experience, it was not uncommon to see Reserve Members directed to complete a specific project within a fixed period of time, but not require that the work be performed at any specific point in time. These assignments would often come with an indication of how many days or half days the member would be paid to do the task. An example would be where a member was directed to draft a report by a fixed date, and was authorized to claim one full day to complete the task. This is work that could be performed at CFB Borden, but could also be done remotely, for example, from home. A reservist could spend an hour or two per night over the course of several days to complete the job. Rather than complete several time sheets, members would accumulate their work over several days, and report it on a single CF 895. The date and times on the form could reflect some of the true time spent on the project, but it could not accurately capture all of the dates and the times when the member was drafting the report.

36The pay sheets in issue appear to fall into this category. Many bear a handwritten notation in the upper right corner. The principal notations which were the subject of evidence were the following: ADM; DWD; Trg; ADR Crse; HA. “ADM” stands for “administration”. Stasyna testified this could include office work on site, reviewing a report, preparing a report, reviewing personnel records, completing a project. “DWD” stands for “Depart With Dignity”. This relates to organizing a retirement dinner for a member of the DND. “Trg” stands for training. “ADR Crse” refers to a course on ADR, or alternate dispute resolution, which are discussed further below. “HA” refers to Harassment Advisor, one of the Complainant’s duties with the DND at the relevant times. In the absence of a notation, Stasyna testified there would have been a memo or something else attached indicating the nature of the work which had been performed. Stasyna testified that in each instance the task must have been properly assigned, or authorized, in order to be a duty eligible for pay. He agreed the task might be performed at an off base location, including the Reservist’s home, provided proper authorization to do so had been given.

37The amount of time a Reservist may claim for one of these tasks is related to the amount of time authorized, which is not necessarily the same as the amount of time actually spent. This was the evidence not only of the Complainant, but of Stasyna. Stasyna gave as an example an on-line learning course which he was authorized to complete at home and for which 11 days were authorized. If it had taken him less time to complete the course, he would still have been entitled to claim the 11 days. It follows that pay sheets could be properly submitted to the DND claiming pay for days on which the Reservist had not actually performed work for the DND.

38Stasyna suggested that another function of the pay sheet was to substantiate when the Reservist was on duty in the event of injury and for the purposes of pension credit. Both of these functions, he asserted, required the pay sheet accurately reflect the dates and times when a Reservist was on duty. In cross-examination, however, he conceded that the pay sheet was just one piece of evidence which could be used to determine whether a Reservist was on duty in the event of accident. He also conceded that what mattered in terms of pension credits was the number of days (or half-days) worked, and not the precise dates or times when that work was performed. McConnell confirmed this to be the case in his evidence.

39Pay sheets have a space where the starting and ending time of the “training” is to be recorded. Stasyna took issue with pay sheets submitted by the Complainant which indicated a start time of 0000 and an end time of 2400:

Additionally, a number of pay sheets located at Tab 1 of the Employer’s Book of Documents Volume 3, submitted by Sgt. Botari record sign-ins of 0000 to 2400 hours. In reviewing the expense claims at Tabs 4 and 6 of the Employer’s Book of Documents Volume 2, Sgt Botari recorded these hours on days that he was staying overnight at a hotel. Typically, 0000 to 2400 hours would only be utilized when troops go into the field – physically deploying in a tactical army style operation and to be in receipt of additional benefits – not staying at a hotel while on a course.

40The pay sheets in question related to one of the ADR courses. In cross-examination, Stasyna was unable to point to a rule which would have made it improper for the Complainant to have signed a pay sheet in these circumstances, indicating the question should be directed to someone from the Orderly Room.

41McConnell indicated that there was nothing improper or unusual about recording 0000-2400 hours on a pay sheet in such circumstances:

It was not unusual for me to see CF 895 forms that listed their time of training or duty as 0000-2400 hours, including for multiple consecutive days. Where members are on duty (particularly travelling) for long, continuous periods of time, they are supposed to be issued a CF 898 “Reserve Force – Route Letter and Attendance Report – Class A”. A Route letter is intended to be used for extended periods of continuous service by members. However, the completion of these “Route Letters” is an administrative burden in the reserves, since they must be completed before training or duty is performed, and require a number of authorizations from officers in the unit. Obtaining the necessary signatures in a timely way can be difficult in a reserve unit, where many of the required members are not present on a daily basis.

As a result, the more common practice within the Reserve Forces was to direct members to simply fill out a series of CF 895s listing 0000-2400 hours for every day that they were on duty. While this generated more paperwork, it was in fact an easier process to follow since it only required a single authorization (from the person with section 34 authority) and because there was more flexibility in terms of when the paperwork had to be filled out. Unlike a Route Letter, which had to be completed in full before the training or duty in question, a CF 895 could also be filled out after the training or duty was performed.

I would encounter CF 895s filled out listing 0000-2400 in various situations, like where members were deployed on field exercises, taking a distance learning course, or were away from their homes for a number of consecutive days. I am not aware of any rule, policy or practice that prohibits any of this. I have never been told by a superior officer that it was improper for a form to be filled out in this way.

42I note the Complainant’s evidence with respect to the pay sheets was broadly similar to that of McConnell. Further, the Complainant testified about a variety of administrative tasks he was assigned as a Reservist. He testified as to the informal manner in which such work was authorized, stating that authorization was more often given orally than in writing. Again, this was broadly similar to the evidence of McConnell.

43I conclude there is no necessary correlation between the dates recorded on the pay sheets and the dates on which work was performed by the Complainant for the DND. There is no requirement the dates or times on the pay sheets be accurate. That is, the date and times for which pay is claimed need not be the date or times during which work was performed for the DND. Further, when the pay sheets are used to attribute cumulative periods of work performed over multiple days to a single date, the date and times recorded obviously cannot be accurate. Similarly, when a pay sheet is used to claim for time which was authorized but not required to complete an assigned task, the date and times recorded cannot represent a period during which work was actually performed for the DND.

44In the result, in my view it cannot be said that those pay sheets constitute proof on a balance of probabilities that the work for which the Complainant claimed pay from the DND was done on the dates and at the times listed on the pay sheets. It follows they do not constitute proof that the Complainant was performing work for and getting paid by the DND on dates on which he was performing work and claiming pay from the MOL.

The Complainant’s Credibility

45Counsel for the MOL made several arguments which were framed primarily as challenges of the Complainant’s credibility. Some of them relate to the DND pay sheets, and accordingly it is convenient to address them at this point.

46The MOL notes the Complainant required appropriate authorization from the DND to perform the task for which he claimed pay from the DND. This is not disputed. It is also not clear how it is relevant to the case before me. Claiming pay from the DND for a task or work that was not authorized or not performed may have been grounds for discipline by DND. The issue before me, however, is not whether the DND had grounds for discipline, but whether the MOL did. The pay sheets are relevant as evidence of whether the Complainant was working for the DND at the same time he claimed to be working for the MOL. Whether he had been authorized by the DND to perform the tasks to which any such work related is not relevant to any issue before me. At most this is a collateral issue which goes to the Complainant’s credibility.

47Having said that, the Complainant provided examples of written authorizations documented by emails. The MOL argues that in cross-examination the Complainant agreed the emails did not represent authorization to do the work in question but rather constituted “the beginning of a conversation”. I have carefully reviewed my notes of the Complainant’s cross-examination with respect to those emails. It was put to him in one instance that an email was similar to another of the emails in that his military superior was “looking into whether this is something you are interested in doing”, to which the Complainant responded “yes, it was the beginning of a conversation”. With respect to most of the emails, it was not put to him that they did not constitute authorization. This evidence cannot be characterized as an admission by the Complainant that the emails did not constitute authorization. The text of many of the emails is consistent with the Complainant’s evidence in examination-in-chief that they constitute authorization to perform a particular task. By my count, some of those emails expressly authorized over 24 days of work, while several simply assigned a task and told him to keep track of his time. While this does not constitute written authorization of all of the time in question, I note again the evidence establishes authorization was most often given orally.

48Further, the fact the Complainant was apparently paid for the time claimed on the pay sheets would support the inference that he was authorized to perform the work. Someone in the DND with ostensible authority under section 34 of the Financial Administration Act signed off on each of the pay sheets. In doing so, the signatory is certifying that the person was authorized to perform the work for which time was claimed. It is the case that with respect to some of the pay sheets, McConnell testified they should not have been authorized or would not pass audit. Assuming this to be the case, I fail to see how this assists the MOL in proving that the Complainant worked and was paid for hours by the DND which overlapped with the hours he claimed to be working for the MOL. The fact a given pay sheet should not have been authorized does not establish the Complainant worked for the DND during the hours recorded on that pay sheet, as required by the MOL’s case.

49Ultimately, whether or not the Complainant was authorized by someone in the DND to perform the work for which he claimed pay from the DND is collateral to the issues in this proceeding. Evidence with respect to authorization was admissible for purposes of challenging the credibility of the Complainant, but for no other purpose. Accordingly, contrary to the argument of the MOL, nothing turns on the failure of AMAPCEO to call any of the individuals in the DND whom the Complainant asserted authorized the work. Further, for the reasons set out above the Complainant’s evidence with respect to the authorization of that work is entirely plausible. In short, it does not give rise to any concerns about his credibility.

50Counsel for the MOL argues the Complainant’s evidence with respect to the manner in which he filled in the pay sheets is not credible. Counsel asserts that in cross-examination, the Complainant stated the date he recorded on a pay sheet was either one of the days on which he performed the work or the last day on which he did the work, with the only exception being if he had already submitted a pay sheet for that date. My notes indicate the Complainant qualified this answer by saying that was what he “typically” did. He also testified that there was no general practice as to the number of hours to put down if claiming a full-day’s pay, but that he “usually” recorded eight hours. The Complainant did testify, as asserted by counsel for the MOL, that he relied on his memory for the purposes of keeping track of cumulative time which he eventually claimed on a pay sheet, and did not otherwise record it.

51The Complainant was cross-examined in particular about a three week period in March, 2011 for which he submitted pay sheets to the DND for 0800 to 1600 hours with respect to what were also three MOL work days in the first week, four MOL work days in the second week and four MOL work days in the third week. When asked for an explanation with respect to those specific weeks, the Complainant testified that he did not recall. When asked to comment more generally about incidents of that sort, the Complainant stated he would put in 8 hours work for the MOL on the day in question and would also have put in six hours work or more for the DND. He testified the work for the DND could have been done in the morning before he commenced his work for the MOL and continued in the evening after he completed that work. Counsel for MOL argued the Complainant gave a “bizarre” explanation with respect to incidents of this sort related to flex time and an asserted ability to perform his work for the MOL from 7:00 AM to 3:00 PM, i.e. outside core business hours. This is not reflected in my notes.

52The fact the Claimant entered 0800 to 1600 hours for a given date on a DND pay sheet, does not constitute proof the Complainant worked for the DND between the hours of 0800 to 1600, that he worked for 8 hours or even that he worked at all. For the reasons discussed above: the pay sheet need not relate to work done on the date listed; since a full-day is paid for six hours or more, the number of hours listed is otherwise irrelevant; and pay could be claimed for the number of days assigned to do a task, even if not all of those days were in fact required. Having said that, the clustering of 11 such pay sheets in a three week period, taken together with the Complainant’s evidence that he typically used either one of the dates on which he performed an assigned task or the date on which he completed it, invites the inference that the Complainant claimed to have done at least six hours of work for the DND on most if not all of the 11 days listed. With respect to his MOL hours of work, Fox agreed that on a particular day the Complainant might work one hour more or less than his scheduled 7.25 hours. Therefore, it is difficult to draw any inferences about the number of hours the Complainant claimed to have worked on a particular day. At most, such an inference can be drawn with respect to hours of work in a week. So, in the first week in question, the Complainant appears to have claimed to have worked 36.25 hours for the MOL and at least 24 hours for the DND, for a total of 60.25 hours of work. And in each of the second and third weeks, the Complainant appears to have claimed to have worked 36.25 hours for the MOL and at least 30 hours for the DND, for a total of 66.25 hours of work per week.

53To the extent the MOL relies on this evidence to establish as a fact the Complainant performed DND work on MOL time, I am not satisfied that such an inference is more likely than not. While this would have constituted a heavy sustained period of work, it is not implausible that the Complainant worked all of those hours, in particular if some of the work was done on the weekends. Further, even if the Complainant worked for less time than the total hours claimed, it is just as plausible that he short changed the DND as that he short changed the MOL. As noted, only the latter is cause for discipline by the MOL.

54To the extent the MOL relies on this evidence as a basis to challenge the Complainant’s credibility, for the same reasons I am also not satisfied that it succeeds. Given the passage of time, I place no particular significance on the fact the Complainant was unable to specifically recall in July, 2019 what he might have been doing more than 8 years before in March, 2011.

55Counsel for the MOL argued that 171 days of work claimed by the Complainant from both the DND and the MOL over the space of 2 1/2 years invites the inference the Complainant was performing work for the DND on MOL time, contrary to his evidence. I am not persuaded by this argument. Assuming 220 MOL work days in a year and that each DND day claimed was for six hours in work, the Complainant’s claim of 171 days of work from the DND over the 2 /12 year period amounts to approximately 10 additional hours of work per week.² This could be accomplished, as the Complainant testified, outside of his 36.25 hours per week of the MOL. I note the Complainant testified that during the relevant period of time, his group was short staffed, with the result there was a lot of additional administrative work which he was asked to do by the DND. He was not challenged on this evidence and there was no evidence to the contrary. Accordingly, for in essence the same reasons given with respect to the three weeks in March, 2011, I am not prepared to arrive at the conclusions urged by the MOL.

56Parenthetically, I note counsel for the Association argues the opposite conclusion should be inferred from the fact the Complainant claimed 171 days of work from both the DND and the MOL over the space of 2 1/2 years. She suggests that if the Complainant had been performing that much work for the DND during MOL time there would have been an impact on his work for the MOL. There were no issues at all with the Complainant’s performance of work for the MOL during this period of time. Thus, she argues, it should be inferred that the Complainant did not work for the DND on his MOL time. I agree with counsel for the Association that the fact there were no MOL performance issues related to the Complainant during the 2 1/2 year period makes it highly improbable that he performed work for the DND rather than the MOL on all 171 days. It does not follow, however, that he could not have worked for the DND rather than the MOL on some of those days. Thus, I do not find this argument of assistance.

57Counsel for the MOL also noted a DND pay sheet for Thursday, May 10, 2012, on which the Complainant had claimed 0800 to 2200 hours. Counsel asserted the Complainant’s explanation was that he had claimed cumulative hours on the pay sheet in question. Counsel noted Thursday nights were Parade nights for which the Complainant would otherwise have been entitled to claim a half-day’s pay for the three hours during which he was in attendance. Counsel argued it made no sense that the Complainant would also claim over six hours of “cumulative” time on that date, as that would mean that he would only receive an additional half-day’s pay for that work, instead of the full-day to which he would have been entitled.

58I give little weight to this argument. My notes indicate the cross-examination of the Complainant with respect to the pay sheet for May 10, 2012 was limited to asking him to confirm that he could submit a single pay sheet for both attending parade night and administrative work. He was not cross examined about why he had recorded 0800 to 2200 hours on the pay sheet, about whether in doing so he was claiming over six hours of administrative work in addition to the time required to attend the parade, or, if so, whether this made sense.

59A great deal of evidence and argument was directed to what occurred during the allegation meeting held on March 9, 2017. Ultimately, given the view I take of this matter, little turns on it.

60During the allegation meeting, the Complainant was presented with a list of the 171 days shown as work dates for the MOL on WIN and also recorded on pay sheets which he had submitted to the DND for pay. The Complainant was asked for an explanation. The Complainant responded that he performed work for the DND on evenings and weekends and the dates he recorded on the pay sheets did not necessarily correspond to the dates on which he had performed the work. That is, the Complainant provided in essence the same explanation during the allegation meeting as he did during these proceedings. While is understandable why Fox may not have found this explanation credible at the time, for the reasons stated above the Complainant’s explanation is consistent with the evidence.

61Returning to the Complainant’s conduct during the allegation meeting, there is no dispute that Fox asked the Complainant for a source who could corroborate his explanation. The MOL asserts the evidence shows the Complainant in essence refused to provide one and argues this was odd behaviour. In my view this is not a fair characterization of the evidence. Fox’s evidence was that the Complainant was cooperative and congenial throughout the allegation meeting. The Complainant was unable to think of a name at the time. Fox indicated he had his own source. The Complainant encouraged him to be sure that whoever he spoke to understood the manner in which Class A Reservists were paid. The meeting concluded with Fox stating he would go to his source.

The Training Sessions

62The second category of dates relates to attendance at training sessions. There were five such training sessions. These training sessions were six of 11 “incidents” identified in the FIT report as “Incident 1”, “Incident 2” and so on. All 11 incidents were reviewed with the Complainant at the allegation meeting. The MOL chose not to rely on the other five incidents in making its decision to terminate the Complainant. The parties, however, at times referred to these training sessions by their original “Incident” numbers, so it is helpful to set those out as well. The training sessions at issue were as follows:

1. Incident 1: Thursday, February 10 and Friday, February 11, 2011 “Primary Reserve, Second Career Assistance Network Transition Seminar”

2. Incident 3: Monday, December 5, 2011, Alternate Dispute Resolution Course

3. Incident 4: Tuesday, December 6 to Friday December 9, 2011, Alternate Dispute Resolution Course

4. Incident 5: Tuesday, January 31 to Friday, February 3, 2012, Alternate Dispute Resolution Course

5. Incident 6: Tuesday, March 27 to Friday, March 30, 2012 Alternate Dispute Resolution Course

6. Incident 9: Monday June 11 to Friday, June 15, 2012 Alternate Dispute Resolution Course

The cost of the courses in question was paid for by the DND.

63These incidents fall into two categories: the SCAN course; and the ADR courses.

64During the course of the hearing, the Complainant’s evidence was that he advised his co-workers by email that he was on vacation on February 10 and 11, 2011, i.e. the dates of the SCAN course, and that copies of those emails were within documents produced to the Association by the MOL. This evidence was not challenged or contradicted. In final argument, the MOL did not maintain the allegation that the SCAN course was an instance of the Complainant performing work for the DND during MOL working hours, forming part of the grounds for termination. Rather, the MOL relied on the fact that the Complainant had not recorded himself as being on vacation on those days in WIN as suggesting the Complainant was “quite willing and capable of doing things outside of work on working time without properly coding them”. The MOL argued that this “chips away at his believability with respect to the ADR courses”. I note the allegation that he had improperly coded his attendance in relation to this date (and two others) was not put to the Complainant in cross-examination. I give little weight to it as a basis for assessing the Complainant’s credibility.

65The remaining five incidents relate to four multi-day ADR training courses which the Complainant attended during regular work days, for which he had not recorded an absence from work at the MOL. The cost of the courses was paid for by the DND, and in addition the Complainant claimed and was paid salary by the DND for the time he spent attending these courses. There is no dispute the subject matter of the courses was relevant to the Complainant’s work with both the MOL and the DND.

66Incidents 3 and 4 relate to the same ADR course. While the date range given to these Incidents is December 5 to 9, 2011, the FIT Report indicates the course itself was held from December 6 to 9, 2011. The Complainant’s MOL Outlook Calendar indicates he was at an “ADR Crse” on those dates, i.e. December 6 to 9, 2011. While the Complainant claimed and was paid salary from the DND in relation to the ADR Course on December 5, 2011, the hours he recorded on his DND pay sheet for that day were 1600 to 2400 hours and his evidence was that this related to travel from his home in Newmarket to a hotel in downtown Toronto where he stayed during the ADR course. There is no evidence the Complainant was actually engaged in work for the DND during his MOL working hours on December 5, 2011. Thus the days for which the Complainant claimed to be working and claimed pay from both the MOL and the DND at the same time in relation to the first ADR course are December 6 to 9, 2011.

67For similar reasons, I find the days for which the Complainant claimed to be working and claimed pay from both the MOL and the DND in relation to the second ADR course (Incident 5) are not January 31 to February 3, 2012, but rather February 1 to February 3, 2012. For the third ADR course (Incident 6), the days are not March 27 to March 30, 2012, but rather March 28 to March 30, 2012. For the fourth ADR Course (Incident 9), the days are not June 11 to June 15, 2012, but rather June 12 to June 15, 2012. In any event, January 31 and June 11, 2012 are among the dates which the MOL decided to “exclude” from consideration.

68In total, then, there are 14 days related to these four ADR courses for which the Complainant claimed to be working and claimed pay from both the MOL and the DND. For clarity, I note the Complainant’s MOL Outlook Calendar indicated he was at an “ADR Crse” on each of these days.

69The Association argues the evidence establishes the Complainant was authorized by his MOL supervisors to attend the ADR courses, and that there is no evidence to the contrary. The “deal” the Complainant had with his MOL supervisors was that the DND would pay the cost of the courses and the MOL would pay for his time. The Association acknowledges the Complainant was also paid by the DND for the time he was in attendance at the courses. The Association does not claim this was disclosed by the Complainant to his MOL supervisors, or that it formed part of the deal. The Association asserts the fact the DND also paid for the Complainant’s time was a product of taking a DND authorized course, and was simply not an issue in anyone’s mind at the time. Further, the Association argues it is irrelevant to the grounds of discharge relied upon by the MOL. Those grounds were that during working hours the Complainant had engaged, without approval, in activities which were not dedicated to his work with the MOL. The Association argues the issue, therefore, is simply whether the Complainant was authorized by his MOL supervisors to attend the courses, not whether he was paid by the DND for attending the courses in addition to having been paid by the MOL.

70The MOL argues the evidence establishes there was no such deal. In the alternative, the MOL argues the authorization was given without awareness the Complainant would also be paid for the time by DND, and that in any event the Complainant was not entitled to be paid twice.

Was the Complainant Authorized by the MOL to Attend the Courses?

71During the allegation meeting on March 9, 2017 the Complainant stated he had been authorized to attend these courses by two of his superiors: Jody Young and Armindo Tomas. The Complainant asserted there was an agreement that the DND would pay for the course and the MOL would pay for his time.

72Subsequent to the meeting, and prior to terminating the employment of the Complainant, Fox spoke with Young and Tomas. Fox’s evidence was they both advised him they were:

unaware of any arrangement where Botari would attend courses with the DND and be paid by both the DND and the MOL. To the contrary, both Tomas and Young advised that they would not have approved of any arrangement where Botari would be paid by both the DND and the Ministry.

73This evidence is hearsay. Given its centrality to the issues in this case, I do not accept it for its truth. Young and Tomas, however, were called as witnesses to give evidence at these proceedings. I will review their evidence, and that of the Complainant on this issue, in some detail.

74Young was the Regional Director of the Central West Region of the Ministry of Labour from August, 2011 until October, 2014. She was based in an office in Mississauga. The Region included the office in Newmarket at which the Complainant was based. Armando Tomas was the manager of the IHSP team based in the Newmarket office. From August, 2011 until the beginning of 2012, RPCs reported to the manager of the team they supported. During this time, the Complainant reported to Tomas. Commencing the beginning of 2012, RPCs reported directly to their Regional Director, although, at least in the Complainant’s case, this had little impact on his day to day relationship with the team’s manager. The Complainant reported to Young effective February 27, 2012 until she left the position of Regional Director of the Central West Region in October, 2014. At that point, Fox became the Regional Director of the Central West Region, and the Complainant reported to him.

75Young testified that she told Fox that she “did not recall” specifically approving an ADR course. She continued that she did not recall specifically an ADR course and that she did not recall the Complainant specifically requesting an ADR course. She noted the Complainant participated in a number of courses and seminars through the Association, but she did not recall which ones or the details of them. She was asked if she recalled the Complainant requesting to attend courses put on by the military, to which she responded she did not. She was asked a compound question, about whether she had approved the Complainant to attend courses put on by the military with time paid for by the MOL and about whether the Complainant ever told her that he attended military courses, to which she responded no. She testified that she was not aware of any military courses or any ADR courses. She was then shown an email exchange between herself and the Complainant on March 23, 2012 which reads in substantive part as follows:

[From the Complainant to Young]

Jody,

Next Tue, Wed, Thurs and Fri (27-30 Apr 12) I will be attending a crse in Toronto.

I will be able to monitor things while I am there, but if you would prefer I ask someone to act for me, let me know. I have asked Cathy Lew if she was avail if necessary and she said she was.

Let me know what you would like.

Ken

[From Young to the Complainant]

Yes if Cathy could cover that would be great please let Sandra, Armando, Bill, Bob and the IHSP team know. What course are you attending?

[From the Complainant to Young]

Will do.

It is the 3rd of 4 ADR crses.

Ken

Young testified that she assumed it was an ADR course related to AMAPCEO, and that the Complainant would be away from the workplace for four days.

76To the extent that Young was cross-examined about the ADR courses, the questions were directed to confirming whether the Complainant was reporting to Tomas or Young on the dates of the various courses.

77In the result, Young did not give evidence that that she would not have approved of any arrangement where Botari would be paid by both the DND and the Ministry. She did give evidence that she was not aware of any ADR course or military course, but the email of March 23, 2012 establishes that her evidence with respect to the ADR course was incorrect. I conclude her unassisted recollection is not reliable.

78Tomas testified that he was aware the Complainant was a reservist with the DND. However, during the period 2011 to 2012 (i.e. the period during which he was the Complainant’s direct manager), he was not aware of the Complainant being away from his work with the MOL to fulfill duties with the DND. During that period he also did not provide approval for the Complainant to attend any courses put on by the military.

79In the context of a June 12, 2012, email thread with respect to a meeting on an unrelated matter, Tomas asked the Complainant: “Where are you, not coming?” The Complainant responded: “On my last ADR crse all week.”. In examination-in-chief, Tomas stated he did not know what the course was.

80In cross, Tomas denied knowing what “ADR” or “Alternative Dispute Resolution” meant until told in preparation for giving his evidence in these proceedings. He was then taken to the Complainant’s “Performance Development Plan and Evaluation Form 2011-2012” (“2011-2012 PDP”) which on its face appears to have been finalized on December 23, 2010. This is a document prepared, in the first instance, by the employee for discussion with his or her manager. At the relevant time, Tomas was the Complainant’s manager. The document contains the following statement under “Proposed Strategies”:

Attend the: Dealing with Difficult People Training course (as attached) offered through the Stitt Feld Handy Group - Feb 1-3 in Toronto.

81Having reviewed the document, Tomas agreed the Complainant had discussed with him wanting to take the “Dealing with Difficult People Training course”. When asked if he approved the course he stated that at the time he decided whether to approve a course of up to a day in length, but he referred requests to take longer courses to the Regional Director for approval. There was no evidence as to the form such a referral would take.

82The 2011-2012 PDP also contains the following statements under “Proposed Strategies”:

Attend ADR courses offered by outside agencies.

Attend Negotiation and Mediation courses offered by outside agencies.

83Having reviewed that statement, Tomas agreed that it was possible he knew what “ADR” meant prior to being prepared for this hearing. He also agreed the Complainant had been clear in his 2011—2012 PDP about what he wanted to do, and that he wanted to take a specific course offered by Stitt Feld Handy. Further he agreed the subject of the courses, conflict resolution, was relevant to the Complainant’s work for the MOL, although he noted the MOL also offered its own courses on this subject. He stated, however, that he could not agree that he knew at the time that the Complainant had taken the course because he did not remember being aware. He also stated he had no memory of a discussion in which the Complainant advised him that he could take the course at no cost to the MOL, and further denied knowing the course was expensive. He stated he was not aware the Complainant had taken the course.

84He was then directed to the June 12, 2012, email thread, in which the Complainant responded to a question about his whereabouts by advising Tomas that he was on his last ADR course all week. He was asked if there was a follow up email and stated there was not to his knowledge. He was asked if he took the Complainant to task as a result of his response, and stated “I trusted him”. He was presented with a copy of an email dated November 28, 2011, from the Complainant to him which indicates “attached is the info for the course I was talking about and that is mentioned in my learning plan”. Attached is a copy of a course description for the “Dealing With Difficult People Training Course”, which indicates the cost of the course was $2,118.75 (inclusive of HST). Tomas testified that since the email had his name on it, he must have received it, but that he had no recollection of that fact.

85Tomas agreed the Complainant might advise him of absence from work in a variety of ways including by email and by telephone. He also agreed he had access to the Outlook Calendars of employees and could also check there for their whereabouts.

86In re-examination Tomas clarified he was referring to the Outlook Calendars of inspectors, not that of the Complainant. In addition to having no memory of the Complainant discussing with him how he could take the ADR course at no cost to the MOL, Tomas denied the Complainant ever told him he would also be paid by another employer for attending the course. He stated he could not accept such a proposition “because if you are the employee of one employer, how can you also be paid by another employer for the same time?”

87In the result, unlike Young, Tomas did give evidence that that he would not have approved of any arrangement where Botari would be paid by both the DND and the Ministry, albeit this evidence was given in re-examination. Tomas also gave evidence that he was unaware of any ADR course or military course, but documentary evidence established that his evidence with respect to the ADR course was incorrect. Not only was Tomas aware of the ADR courses, but he had also discussed them and the cost of at least one of the ADR courses with the Complainant as part of his performance appraisal process. I conclude his unassisted recollection is not reliable.

88In examination-in-chief, the Complainant testified that he took the ADR courses with the knowledge and approval of Tomas, and that once Young became his supervisor she was aware that he was taking the courses.

89In cross-examination, it was noted that in his 2011-12 PDP, the Complainant provided the dates for the “Dealing With Difficult People” course (February 1-3, 2012), but he did not include the dates or names of the other three ADR courses. He was asked if there was a reason for this, to which he responded he did not recall. The Complainant agreed that he knew the names and dates of the courses at the end of November, around the time he discussed the 2011-12 PDP with Tomas, but stated he did not necessarily know them at the time he filled out the PDP. Asked again why he did not list the courses in the PDP, he responded the MOL would not pay for those courses so there was no use listing them. It was suggested to him that he did not raise the ADR courses with Tomas for that reason. He rejected this suggestion noting that there was a reference to the ADR courses in his PDP and stating that he and Tomas had a discussion about them. Having been directed to some emails, he agreed that at the time he specifically included the Dealing With Difficult People course in his PDP, he did not yet have approval from the DND to pay for that course. He stated he asked Tomas about this course from the perspective of getting the MOL to pay for it. He was asked if there was a reason why he did not specifically refer to the December 6-11, 2011 ADR course in his PDP, and stated he could not recall.

90The MOL points to several emails from late November, 2011 between, on the one hand, the Complainant and Tomas about the nature and cost of the Dealing With Difficult People course, and, on the other, the Complainant and his superiors in the DND obtaining approval to pay the cost of all the ADR courses. There is nothing in the emails which indicates either that the Complainant told Tomas the DND would pay for the cost of the courses (and his time), or that he did not. The MOL argues on the basis of these emails the Complainant’s explanation as to why he did not include the names and dates of the other ADR courses in his 2011-12 PDP does not make sense, as he knew the names and the cost of the courses and he knew the DND would pay for the courses. The difficulty with this argument is, as pointed out by the Complainant in his evidence, the 2011-12 PDP may have been filled out before those emails were sent. Therefore, I am unable to draw the inference urged by the MOL.

91In cross-examination the Complainant was also taken to the 2012-13 PDP which contains no reference to the ADR courses, even though the last of these courses took place during the currency of that PDP. The Complainant was asked why this was so to which he responded he did not recall.

92Did the Complainant attend the ADR courses on MOL time without authorization? The burden is upon the MOL to prove that he did not have authorization with evidence which is sufficiently clear and cogent to satisfy the balance of probabilities test.

93The direct evidence of both Tomas and Young was that they did not provide such authorization. However, the recollection of each was, not surprisingly, imperfect. Neither remembered being aware at all that the Complainant had attended ADR courses until presented with documents from the time which made it clear the Complainant had advised them. I am not satisfied the direct evidence of Tomas and Young is sufficiently clear and cogent. Through no fault of their own, the passage of time has made their unassisted recollection unreliable.

94Can lack of authorization nonetheless be inferred, on a balance of probabilities, from the evidence? In my view, it cannot. In addition to the points already made, I would note that there was no suggestion that approval to attend such a course would take any particular form, i.e. that it would be in writing. Therefore, it is not possible to infer that no approval was granted from the absence of authorization in such a form.

95Indeed, there are parts of the evidence which are inconsistent with this inference. For all four of the ADR Courses, the Complainant’s MOL Outlook Calendar indicates “ADR Crse” on each day of the courses. Even if his MOL superiors did not have immediate access to that Calendar, it seems improbable that the Complainant would record his attendance at the courses in that Calendar if his attendance at those courses was on work time and not authorized since doing so would not be in his interests. (On the other hand, I note that if the Complainant could effectively be authorized to attend such courses not only by the MOL but by AMAPCEO, then the inclusion of the reference in his Outlook Calendar was not necessarily against his interests.) The Complainant also proactively advised Young of his attendance at one of the ADR courses by sending her an email on March 23, 2012, and responded quickly and honestly to an email from Tomas on June 12, 2012 asking about his whereabouts while on one of the courses.

96In the result, I find the MOL has not proven on a balance of probabilities that the Complainant’s attendance at the ADR courses was without authorization.

Was Double Payment Alone a Ground For the MOL’s Decision?

97This leaves the fact the Complainant was paid for the time spent attending these courses by both the MOL and the DND. The MOL argues this in itself constitutes grounds for discipline. The Association argues the MOL is not entitled to rely on this as it was not one of the grounds upon which it relied in making its decision to terminate the Complainant’s employment. Rather, those grounds were that during working hours the Complainant had engaged, without approval, in activities which were not dedicated to his work with the MOL. The Association argues the issue, therefore, is simply whether the Complainant was authorized by his MOL supervisors to attend the courses, not whether he was paid by the DND for attending the courses in addition to having been paid by the MOL.

98The grounds set out in the March 16, 2017 termination letter were:

On March 9, 2017, you were provided with an overview of the findings of the investigation and you were provided with an opportunity to explain the findings which show a consistent pattern of misrepresenting your work activities and hours as a ministry employee while engaging in an outside activity. During the meeting, you provided responses to these findings which I have considered.

As you are a Provincial Offences Officer under the Provincial Offences Act, you have significant levels of statutory powers and authority, and as such your conduct and practices must always be above reproach. As a Provincial Offences Officer in a Regional Program Coordinator position who is required to work in the field and as an elected workplace employee representative and leader, the employer has trusted that your activities during working hours, unless otherwise authorized, were dedicated to the work of the Ministry of Labour or authorized union activity. You have clearly failed to uphold these values and obligations which are essential to maintaining public trust and confidence in ministry enforcement activities. Your actions have irreparably damaged the employment relation and the trust placed in you by your employer.

99While this letter is not explicit, during the termination meeting Fox was asked to confirm the reason for termination. Jucaba’s notes indicate that Fox responded: “Time theft and double dipping.” It is clear from this, and other evidence which need not be reviewed here, that the grounds relied upon by the MOL include both the performance by the Complainant of work for the DND on his MOL work time without authorization by the MOL, and his payment for that work by the DND. It does not necessarily follow, however, that those grounds extended to the performance by the Complainant of work for the DND (for which he was paid by the DND) on his MOL work time with authorization by the MOL. There was no direct evidence on this point. The indirect evidence supports the conclusion the MOL did not rely on that as a ground. Firstly, there is the evidence with respect to the treatment of the training sessions in issue during the allegation meeting. The training days were among the days which the DND had identified to the MOL as ones on which the Complainant was paid by both the MOL and the DND. Unlike virtually all of the other days in question, the Complainant admitted to attending the DND training sessions. Thus, during the allegation meeting Fox knew that the Complainant had been paid by both the MOL and the DND for attending the training sessions in question. Fox’s locus of inquiry shifted, however, to the Complainant’s assertion that he had been authorized by his MOL superiors to attend those training sessions. There was no suggestion in Fox’s evidence with respect to the allegation meeting or the grounds on which he relied for termination that the mere fact the Complainant had been paid by both the MOL and the DND for attending was sufficient grounds for discipline.

100Secondly, there is the evidence with respect to the treatment of one of the other incidents which Fox chose to exclude from consideration during the allegation meeting. Fox testified he excluded the incident in relation to the Complainant’s attendance at a military funeral during MOL working hours on the basis that attendance at funerals is something which the MOL generally permits employees to do for compassionate reasons. In effect, Fox’s evidence was had the Complainant asked, he would have been authorized by the MOL to attend the military funeral. In his declaration Fox stated:

It is worth noting that although I gave the benefit of the doubt to Botari with respect to some of the excluded dates, they were still informative to me with respect to showing that Botari did [sic: not] actually log time as one would expect to reflect the activity that was being done. It also demonstrated to me, for example with respect to Botari’s attendance at a funeral, that Botari was not above claiming to have worked for both employers at the same time without providing the Ministry with any information about what he was doing or where he was.

The concern here is about information recorded by the Complainant in WIN or shared with the MOL. It is not about getting paid twice. If it had been, the funeral attendance incident would not have been excluded by Fox.

101In addition, there is the MOL’s approach to the SCAN incident during final argument. SCAN was a course put on by the DND during MOL working hours. The WIN records indicated the Complainant claimed to be working for the MOL on the two days of that course, and he was paid accordingly. DND pay sheets indicated the Complainant was paid for attending the SCAN course. The Complainant admitted that he attended the course. During the course of the hearing, the evidence established that the Complainant had advised his MOL work colleagues that he was on vacation on the days in question. The MOL did not rely on this incident in final argument, other than as another example of the Complainant’s failure to properly record his attendance on WIN. That is, the MOL did not rely on the fact the Complainant claimed and was paid for the same work time by both the MOL and the DND in support of its decision.

102I conclude the grounds for termination did not extend to the performance by the Complainant of work for the DND (for which he was paid by the DND) on his MOL work time with authorization by the MOL.

103Two issues remain. The first is Tomas’ statement that he would not have authorized the Complainant to use MOL work time to attend the training sessions had he known that the Complainant was also going to be paid for that time by the DND. I note that Tomas gave this answer in re-examination and thus it was not the subject of cross-examination. The fact of the matter is that the Complainant did not tell Tomas, so what Tomas would have done had he been told is not the issue. The issue is whether the Complainant should have told Tomas that if authorized by the MOL to attend the course, the DND would pay for his time as well. There was no questioning at all with respect to why the Complainant did not disclose this to Tomas. The MOL has not proven, therefore, that the Complainant deliberately failed to disclose. There is also no suggestion that the Complainant had an obligation to disclose, which was breached by his failure to do so, whether intentional or not. While it might have been the case that such a requirement arose from the Complainant’s obligation to declare conflicts of interest, Fox’s evidence was clear that while working at two jobs was technically a conflict of interest, in his view the Complainant’s activities were not. Any such obligation, therefore, was not a ground of termination on which the MOL relied.

104The second issue is the significance of the Complainant failing to properly record activities in WIN, for example his failure to record in WIN that he was on vacation of the days of the SCAN course. This could fall within one of the grounds relied upon by the MOL in deciding to terminate the Complainant’s employment: that he “misrepresented” his activities. Misrepresentation, as distinct from simple error, is a deliberate act. There is no direct evidence at all with respect to why the Complainant failed to properly record his activity in WIN. Misrepresentation might be inferred if there were numerous instances in which the Complainant failed to correctly record his activity in WIN, but, given my findings above, there were not. Rather, those instances appear to be limited to the SCAN course (2 days which should have been recorded as vacation in WIN) and the funeral (1 day, for which the Complainant should have sought compassionate leave, which would have been given, and recorded as such in WIN). That is, in my view, insufficient to support an inference of deliberate misrepresentation on the part of the Complainant.

105For all of the foregoing reasons, I find the MOL has failed to prove the Complainant engaged in the conduct alleged to constitute grounds for termination. Accordingly, the grievance is allowed. The Complainant is to be reinstated with no loss of earnings or seniority. I remain seized should there be any disputes with respect to the quantification of the Complainant’s losses.

Footnotes

1. 1There were an additional 46 such days which the MOL decided to “exclude” from consideration because they fell on weekends, holidays or for other reasons.
2. 2This is a very rough estimate of the average amount of time per week the Complainant appears to have worked for the DND. It does not include the 46 days which the MOL decided to “exclude” from consideration because they fell on weekends, holidays or other reasons. On the other hand, it does include a number of days from the “Incidents” discussed below on which the Complainant claimed pay from the DND for hours during his MOL work time. Presumably the 171 days also did not include other hours which the Complainant worked for the DND, such as training during the summer (assuming this was not done on the Complainant’s vacation from the MOL) and Parade nights (three hours on Thursday nights) during the rest of the year. But even if all of this amounts to an additional five or six hours per week, the Complainant would have been working on average 15 to 16 hours per week for the DND over and above his MOL work time. This amounts to a typical part time job. It is not enough to make the inference the Complainant must have worked for the DND during his MOL work time more probable than not.