Service Canada worker said application based on home business, but full-time employment didn’t change
A federal government department was justified in terminating the employment of a worker who lost reliability status after her inappropriate applications for government benefits during the COVID-19 pandemic, a federal adjudicator has ruled.
The worker was a full-time Service Canada benefits officer employed with Employment and Social Development Canada (ESDC) in the employment insurance (EI) program. She also had a small home crafts business that she started in 2019. She had more than 20 years of federal government work experience, beginning with the Canada Revenue Agency (CRA) in 1997. She joined ESDC in 2014, dealing with EI claims.
As part of her employment with ESDC, the worker received extensive training as a benefits officer and the eligibility criteria for claims.
When the pandemic arrived in March 2020, the worker’s employment didn’t change and she continued to work full-time. The ESDC administered the Canada Response Emergency Benefit (CERB) – the temporary benefit program providing financial support to Canadians who lost their jobs or faced a significant reduction of income because of the pandemic – but the CRA administered it.
Application for CERB benefits
The worker applied for and received all seven four-week cycles of CERB payments from March 15 to Sept. 26, 2020, totalling $14,000. Although she didn’t experience a reduction in her ESDC income, her income from her home business was less than what she expected – although it actually increased from the previous year.
The instructions for CERB eligibility initially stated “for at least 14 consecutive days of the four-week period you selected, you have either stopped or will stop working due to COVID-19 or, you have lost or will lose your regular employment or self-employment income.” She said she thought she could be eligible based on the loss of her self-employment income and her ESDC salary didn’t figure into it.
In April 2020, the eligibility criteria were clarified to “no more than $1,000 in combined employment or self-employment income” during the period.
The worker called the CRA inquiries line in March, but she just asked a general question about eligibility and didn’t give any information about herself. In the call, she said that her income from her small business was “nullified” and the CRA agent advised that she could be eligible for CERB and, if it was later determined that she wasn’t, she would have to pay back any benefits received. The worker called again in May to make sure she was still eligible, telling the agent she still worked full-time with a small business. According to the worker, she was given the same advice.
Investigation into CERB payments
ESDC learned of the worker receiving CERB payments and launched an internal security investigation, including a review for cause. This was a formal reassessment of whether the worker should continue to hold security status due to concerns over her reliability or loyalty.
ESDC determined that the worker wasn’t eligible to receive CERB due to her continued full-time employment with no loss of income and she should have known that. Her reliability status was revoked and her employment was terminated for cause as a result.
The worker grieved the termination, arguing that she didn’t intentionally commit fraud. She said that the pandemic was a stressful and difficult time – both of her parents fell ill and passed away - and the CERB eligibility criteria were confusing. She said that if she had realized that she wasn’t eligible, she wouldn’t have applied.
Although the worker claimed that she misunderstood the eligibility criteria for CERB, the adjudicator found that she had to have known or strongly suspected that she didn’t meet the requirements and “chose to remain wilfully blind” to them.
Initially, the worker interpreted the CERB eligibility criteria to include the loss of self-employment income alone, based on ambiguous wording in the first version of the instructions. However, the adjudicator noted that her self-employment income didn’t decline as anticipated and, in fact, it increased during the pandemic.
Termination for dishonesty
While there was ambiguity in the CERB instructions initially, the criteria were clarified in April 2020 to clearly state that applicants had to have stopped working and earn no more than $1,000 in combined employment or self-employment income during a benefit period. However, the worker continued to apply, said the adjudicator, noting that the worker admitted in the hearing to rushing through the questions during the application process without fully listening to them and her calls to the inquiry line showed a suspicion that she wasn’t eligible.
The adjudicator considered the worker’s extensive experience as a benefits officer, her training in assessing eligibility, and her responsibilities in handling complex claims and found that her actions were inconsistent with the values and integrity expected of federal employees, particularly given her role.
While the worker argued that personal stress contributed to her actions, the adjudicator found that it didn’t mitigate her responsibility as an ESDC employee. The worker had worked full-time – including voluntary overtime - and maintained her home business during the period for which she applied for and received CERB, the adjudicator said.
The adjudicator also noted that the worker’s termination wasn’t disciplinary in nature but followed the revocation of her reliability status, which is a condition of employment in the federal public service. The worker’s conduct under the values and ethics policies governing public servants "reflects negatively on her reliability,” said the adjudicator.
The adjudicator found that there may not have been a clear intent by the worker to commit fraud, but her conduct demonstrated a lack of integrity sufficient to justify the loss of reliability status and, as a result, her employment. The grievance was denied.
