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DISCIPLINE AND DISCHARGE - Grounds - Dishonesty

Friday, July 14, 2017 @ 11:18 AM  


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Application by the Attorney General for judicial review of an adjudicator’s decision, ordering Heyser’ reinstatement as an appeals specialist benefits officer in the Edmonton office of HRSDC’s Employment Insurance Pay and Processing Division. Heyser started teleworking in 2008, with the approval of her employer and the support of a medical certificate from her family physician. Heyser’s sons had special needs and she wanted to work from home to be able to care for them. The physician terminated her doctor-patient relationship with Heyser by letter in July 2010, indicating that she needed to cut back on her family practice due to the increasing demands of her cosmetics practice. Heyser was advised to find a new family physician. Heyser’s manager asked for a new medical certificate in September 2010. Heyser sent a new certificate from the same doctor in April 2011. The manager learned from the doctor that the certificate was not authentic. At a subsequent meeting with her manager, Heyser provided another doctor’s note stating she was unable to work due to medical issues. She had surgery in May 2011 and returned to work in October 2011. Her work was monitored closely. She was informed that an administrative investigation would be undertaken about the falsified doctor’s note. The investigator concluded that Heyser had committed forgery and violated the Values and Ethics Code for the Public Service. She was provided with the investigator’s report and asked to respond. She was informed by letter dated April 27, 2012 that her position was terminated because her reliability status had been revoked by the Departmental Security Officer. Heyser filed two grievances challenging both her dismissal and the revocation of her reliability status. The adjudicator considered the termination decision unreasonable because the employer lacked a legitimate concern that Heyser would steal valuables, exploit assets or information for personal gain, fail to safeguard information and assets entrusted to her, or exhibit behaviour that would create an unacceptable risk to the employer’s operations. The adjudicator emphasized the fact that Heyser was permitted to return to work despite the fact the employer knew that she had falsified the doctor’s certificate. He did not consider the revocation decision itself a disciplinary action.

HELD: Application dismissed. The adjudicator did not have to make a finding that the revocation decision constituted disguised discipline in order to assert jurisdiction over Heyser’s grievance in relation to that decision. He had jurisdiction to deal with non-disciplinary terminations. The adjudicator reasonably concluded that Heyser’s dismissal, based on the loss of her reliability status, was a sham or camouflage and hence not made for cause.

Heyser v. Deputy Head (Department of Employment and Social Development), [2017] F.C.J. No. 552, Federal Court of Appeal, M. Nadon, E.R. Dawson and J.M. Woods JJ.A., May 26, 2017. Digest No. TLD-July102017011