An Ontario government worker who lied twice to his employer about his criminal charges does not deserve to be reinstated, an arbitrator has ruled.
The worker was employed by the Canada Revenue Agency (CRA) as an auditor until January 2005. He was charged later that year with fraud, breach of trust and impersonating taxpayers.
While the police investigation was underway, the worker applied for an enforcement service representative position at the Ontario government’s Family Responsibility Office (FRO). Normally, a successful hire for the job would be subject to a criminal records check but the worker was only offered a six-month contract and did not undergo the check. He began work in March 2006.
In June 2006, the worker signed a consent form for a criminal records check. The charges against him were discovered, as well as the fact his case was pending in 2007.
The worker explained he had worked at a tax office and the charges came from a misunderstanding where he had filed tax returns for clients without written authorization, but he had verbal agreements with them. The worker said he had spoken to police and it would be all cleared up. FRO took him at his word and asked to be informed of developments.
As it turned out, the worker had not spoken to police and his charges stemmed from filing false tax returns for 18 people — 16 of whom were deceased — with false claims for child tax benefits and child-care expenses through false birth certificates. He directed the refunds from these benefits to his own bank accounts.
In total, the worker defrauded the government out of more than $150,000 while at the CRA.
On June 18, 2007, the worker called in sick but was actually in court to plead guilty to the charges. In November, he requested a leave without pay for up to one year so he could take care of his ill mother, to start on Nov. 26.
He was eventually granted a three-month leave. However, three days after the start of his leave, the worker was in court and sentenced to 18 months in jail with a chance of parole after six months.
FRO learned of the worker’s incarceration in January 2008 and investigated. There was no evidence the worker had used his job with FRO for inappropriate purposes but it was discovered that not only did he lie about his reason for the leave, he lied about the nature of the charges against him, the amount he had received from the fraud and how he committed it.
On Sept. 12, 2008, his employment was terminated for dishonesty.
The arbitrator found the employee’s mother was sick — the worker had received a temporary absence permit from the correctional centre in January 2008 to care for her — but he was aware of the possibility of his sentencing and knew his incarceration would likely begin around the time of his leave, so he misrepresented the reason for his leave.
He also lied to his employer the day he called in sick for his court date, said the arbitrator.
“(He) made his request for a leave of absence within weeks of his sentencing hearing. He requested a leave of absence for one year, with a start date of Nov. 26, 2007.
“I do not believe that it was simply coincidental that he wanted his leave of absence to start just prior to his sentencing hearing.”
There was also no reasonable explanation for his misleading account of the worker’s charges, which called his honesty into question. The worker’s position at FRO required him to access databases with sensitive and confidential information, so trust was essential for his job.
After misleading FRO on his charges and reason for his leave, this trust was destroyed, said the arbitrator in upholding the dismissal.
“(The worker’s) dishonesty in the two instances relied on by the employer go to the heart of the employment relationship,” said the arbitrator.
“Although the employer gave (the employee) the benefit of the doubt on more than one occasion, his conduct abused the trust the employer had placed in him.”
For more information see:
•O.P.S.E.U. v. Ontario (Ministry of Community & Social Services), 2012 CarswellOnt 53 (Ont. Crown Employees Grievance Settlement Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
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