Procedures for providing help and preferential treatment for colleagues and relatives changed with customer service changes, but worker was slow to change with them
A 30-day suspension to a federal tax worker for not following new policies and procedures for accessing tax information was excessive discipline, the Federal Public Sector Labour Relations and Employment Board has ruled.
Andre Michaud worked for the Canada Revenue Agency (CRA) starting in 1994 as a client information officer at a regional tax services office in Eastern Quebec. His job involved answering the questions of taxpayers who came to the office needing assistance. Usually, to provide assistance, he accessed taxpayers’ files after confirming their identity — or confirming power of attorney if the individual was there on behalf of another taxpayer.
Every year, Michaud and other CRA employees received a reminder to review CRA’s Code of Ethics and Conduct along with its Conflict of Interest Policy and Guidelines, which included warnings against unauthorized access of taxpayer information — especially the tax information of friends, relatives, acquaintences or an employee’s own information.
By the early 2000s, taxpayers were encouraged to seek help via a 1-800 number before coming into an office. Michaud and other counter agents were usually only supposed to help taxpayers with appointments if their issues couldn’t be resolved over the telephone. Michaud found some people were irritated with not having direct communication and more complications if appointments were needed.
Other CRA employees sometimes asked counter officers such as Michaud to look into their tax files or verify data. Employees were prohibited from looking into their own files, but could ask another counter officer to do it.
CRA eventually appointed specific officers to answer employee questions in order to ease the workload of counter officers. Michaud was often one of these designated officers.
By 2007, CRA changed its practice and decided it would no longer designate counter officers to help employees. Employees were encouraged to use the “normal channels” available to all taxpayers — the 1-800 number, website, self-serve kiosks, and appointments with counter officers if necessary. It sent a memo to employees explaining the change, which it repeated in 2008, 2009, and 2011. In 2011, CRA also reminded employees that they must not access the tax information of themselves, a relative, friend, or colleague, nor should they access information “that is not part of their official duties or assigned workload.”
In October 2012, Michaud’s supervisor told him that “no longer and under no circumstances should he serve his colleagues like other taxpayers” and he was not to access their files. There was no evidence that Michaud accessed any of the files after April 2012.
In November 2012, CRA’s internal affairs and fraud control division informed the deputy commissioner for Quebec that it had launched an investigation into Michaud that had revealed he had “accessed the confidential information of 15 work colleagues and their family members 811 times” between Jan. 1, 2005, and Dec. 31, 2011. The division then moved to a disciplinary investigation that looked at 23 information accesses affecting nine taxpayers.
The disciplinary investigation found that Michaud had made unauthorized accesses and disclosure of confidential information of the nine taxpayers and gave preferential treatment in processing requests for five of them.
When Michaud was called to schedule an investigative interview, he was “floored,” as he had tried to avoid conflicts with clients or working on files of relatives or friends. However, he felt it was part of his job to answer questions from colleagues in his office and conduct searches to help them.
The investigation involved interviews with managers and team leaders who had supervised Michaud, and they said he had a hard time adjusting to the new practice of redirecting taxpayers to telephones and refusing to help them without an appointment. He had also been told to stop serving the office’s employees when they should be using the normal procedures to get assistance.
On Feb. 24, 2014, Michaud was called into a disciplinary meeting. The investigation had found two acts of misconduct — unauthorized access to taxpayer information or to sensitive or confidential information, including preferential treatment, and unauthorized disclosure of taxpayer information or sensitive or confidential information. He was told a minimum level of discipline was required — 30 days’ suspension – but if Michaud demonstrated remorse it could be reduced to 20 days. However, Michaud felt he didn’t deserve discipline.
Michaud explained he had been asked for help by the taxpayers in question due to difficulties they had understanding what they had to do. He recommended the 1-800 number to them but some came back to him saying they couldn’t figure out the directions provided on the phone. Michaud said he “could not admit that helping colleagues was a wrongdoing against the employer since it had been a significant part of his duties for a long time.”
CRA suspended Michaud for 30 days without pay beginning April 9, 2014. He filed a grievance, arguing the discipline was “unfair and exaggerated.”
On Oct. 1, 2013, CRA closed all of its service counters and tax services offices were no longer open to the public.
The board found that Michaud’s misconduct wasn’t properly characterized in the investigation report. The information he accessed wasn’t necessarily unauthorized, as Michaud had done them in good faith at the request of the taxpayers involved, according to rules that had once been in effect.
The board also found that the preferential treatment for colleagues was before he was warned in October 2012 about not helping people without an appointment — he stopped doing it after that.
The board determined that there was a certain level of condonation by CRA for Michaud’s actions during the transition of procedures and Michaud’s intent was in good faith. When he was clearly told not to access the information of family and friends or give anyone preferential treatment, he stopped doing it, said the board.
The board also considered Michaud’s length of service with CRA and the lack of previous discipline and determined the 30-day suspension was excessive. CRA was ordered to replace the suspension with a five-day one and reimburse Michaud for lost pay and pension contributions for the other 25 days.
For more information see:
• Michaud c. Agence du revenue du Canada, 2018 CarswellNat 8304 (Fed. Public Sector Lab. Rel. & Emp. Bd.).