Evidence of employee's involvement circumstantial: Arbitrator
Canada Post employee Aleem Mustapha was fired for his alleged participation in mortgage fraud. The Canadian Union of Postal Workers filed a grievance on his behalf, arguing for his reinstatement. According to the union, Mustapha was the victim of a scam.
Primrag Chansingh and Frank Wong were charged with mortgage fraud involving more than 100 mortgages, one of which was on Mustapha’s home. The income verification letter submitted in order to obtain the fraudulent mortgage was forged on Canada Post letterhead. The document wrongfully described Mustapha’s position and income with Canada Post and featured the forged signature of Mustapha’s supervisor.
Police informed Canada Post of the forged letter and the employer investigated Mustapha’s possible involvement in the scheme.
Before his interview with the employer regarding the forged letter, Mustapha’s wife was arrested in connection with the mortgage fraud. Mustapha did not disclose this information to the employer, however, and when he required time off in relation to the arrest he told Canada Post his wife had been hospitalized.
Following the investigation Mustapha was discharged for the unauthorized use of Canada Post letterhead and for the fraudulent misrepresentation of both employment and income.
Throughout the investigation Mutapha claimed he had no knowledge of the forged letter. While police believed Mustapha and his wife were involved in the mortgage scheme — the charges filed against his wife were eventually dropped and Mustapha himself was never charged — the union argued investigators were unable to find any evidence linking Mustapha to the letter.
It was understandable that Mustapha lied about his wife’s arrest, the union said, as he was embarrassed and confused by the situation. Mustapha had no record of discipline in his 15 years of employment, something the union said should be considered.
During arbitration, Wong — under the protection of the Charter and the Canada Evidence Act — testified it was Chansingh who forged the income verification letter, not Mustapha. Canada Post, however, submitted Mustapha’s involvement in a fraudulent mortgage scheme — one that involved Canada Post and a Canada Post supervisor through a fraudulent letter — and dishonesty during the employer’s investigation was a breach of trust.
Mustapha lied about his wife’s arrest, his knowledge of a mortgage scheme and his knowledge of the forged letter, the employer argued, which was an attempt to protect himself and the perpetrators of the fraud. Furthermore, Mustapha benefited greatly from the fraudulent mortgage.
Arbitrator O.B. Shime considered the grounds for discharge. The employer argued Mustapha’s fraudulent conduct in obtaining the letter and his dishonest conduct during the investigation process were grounds for dismissal. However, the grievor’s conduct during the investigation was never stated in the termination letter as a ground for discharge.
Mustapha’s discharge, then, must be examined based on the grounds of his alleged misuse of Canada Post letterhead and for the fraudulent misrepresentation of both employment and income.
"In this case, there is no direct evidence linking the grievor to the forged documents," Shime said. "Evidence of the linkage is circumstantial… I am not convinced the grievor is the person who fraudulently prepared and submitted the letter."
Reference: Canada Post Corporation and the Canadian Union of Postal Workers. O.B. Shime — arbitrator. Chris Meaney for the employer, Adam Beatty for the union. Jan. 5, 2015.