HomeMy WebLinkAbout2010-0031.Hussain.13-04-19 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2010-0031
UNION#2010-0542-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hussain) Union
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The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
BEFORE Joseph D. Carrier Vice-Chair
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Benjamin Parry
Ministry of Government Services
Labour Practice Group
Counsel
HEARING December 1, 2010, March 31, April 11,
July 13& 28, December 13 & 15, 2011,
January 19, February 7, 27 & 28, June 25,
July 16, September 11, 2012, January 9, 2013.
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Decision
[1] This is the grievance of Mr. Faisal Hussain alleging that his termination on or about February
22, 2010 was without just cause. The Board last convened on January 9, 2013 to hear final
argument concerning the merits of the grievance. That was in compliance with my oral
ruling of September 11, 2012 which was confirmed in writing on September 26, 2012 at
which time I denied a further adjournment motion made by union counsel Ms. Jane Letton. I
then directed that the matter proceed to final argument on the next scheduled hearing day
which had been set for January 9, 2013. That adjournment request or motion was premised
on the fact that Mr. Hussain had once again failed to attend on a scheduled hearing day. The
motion was declined since Mr. Hussain, as before, had failed to provide adequate evidence to
justify his unavailability.
[2] Before proceeding to argument on January 9, 2013 we enquired of Ms. Letton, union
counsel, as to whether or not Mr. Hussain might have been unaware of the continuation. Ms.
Letton confirmed that she had communicated the results of the September 11th proceedings
and the September 26th written award by several means and on several occasions and
requested a response and acknowledgment. There was no direct reply from Mr. Hussain
himself, however, as on an earlier occasion, his spouse responded on his behalf that he
continued to be unavailable due to health related issues. Regrettably, as before, there was no
medical documentation provided to substantiate his continued unavailability. As indicated
earlier, the matter then proceeded to final argument. Since Mr. Hussain failed to attend
proceedings after the close of the Employer’s case and also failed to provide satisfactory
documentation to justify his continuing absence, we do not have the benefit of his testimony
explaining the alleged misconduct for which he was terminated. We have instead only the
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unsworn and confusing excuses he gave to his employer. His fate must, therefore, be
determined almost exclusively on the basis of the Employer’s evidence. Accordingly, what
follows later will be a synopsis of the evidence heard together with my assessment of
whether or not the allegations were proven and, if proven, whether just case for termination
had been established. Before reviewing that evidence there are three matters which, although
not technically preliminary in nature, merit consideration beforehand.
The Human Rights Code and the I.T. (Computerized Evidence)
(A) Abuse of Process
[3] Mr. Hussain’s repeated failure to attend proceedings could possibly be viewed as an abuse of
this Board’s process. In such a case, the matter might be dismissed in its entirety where there
has been inadequate or unsatisfactory evidence to show that a party was legitimately
unavailable or unable to attend.
[4] Mr. Parry did identify that issue in his submissions but reserved the employer’s rights to
present argument on it in the event the decision on the merits favoured Mr. Hussain. On
agreement with the Union that issue was, therefore, put in abeyance.
(B) The Human Rights Allegations
[5] I do not at this stage propose to deal in depth with the Grievor’s allegations of discrimination
with respect to his treatment by the Employer. However, it is noteworthy that in a
preliminary award of this Board dated April 6, 2011 I confirmed that “the Board here will be
obliged to consider the Employer’s conduct and the Grievor’s termination in the context of
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potential violations of the Human Rights Code”. Furthermore, at paragraph 12 of that same
decision the following Order was granted:
“The Union is directed to provide additional particulars, if any, of the Employer conduct which is
alleged to have been discriminatory. Failure to do so promptly and, no later than the end of April,
may impede its right to call evidence concerning matters which have not been particularized with
respect to the who, when, and where of the conduct and the manner in which it is alleged to have
been discriminatory”.
[6] In the circumstances, the Union and Grievor were given a reasonable opportunity to identify
and particularize any Human Rights allegations they sought to have addressed. In due
course, this award, amongst other things, will consider and dispose of those allegations.
(C) The I.T./Computerized Evidence
[7] At the outset of proceedings it appeared that the Grievor had resiled from admissions he had
made during the course of the Employer’s investigation. Those admissions related to
information resident on his workplace computer, as well as the employer’s net drive and
storage server which he regularly accessed and used in the course of his duties. Based upon
overwhelming and uncontradicted evidence, I have concluded that the impugned use of the
Grievor’s computer was attributable to him and none other for reasons which again will be
addressed later in this award.
[8] Finally for the reasons which are fully addressed below, I have concluded that there was just
cause to discipline Mr. Faisal Hussain and that termination of his employment was an
appropriate response. Furthermore, there was no substantiated evidence that Mr. Hussain
was singled out and subjected to discriminatory treatment relative to other employees or by
reason of any of the prohibited grounds identified in the Human Rights Code of Ontario. I
have, therefore, concluded that his grievance must be dismissed.
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The Background and Issues
[9] Mr. Hussain had worked as a Financial Officer in the Family Responsibility Office (FRO) of
the Ministry of Community and Social Services for approximately eight (8) years at the time
of his termination. In that position, he had access to the FRO database as well as, for
instance, to that of the Ministry of Transport for Ontario (MTO). Accordingly, the personal,
banking and other financial information of FRO clients and other citizens was available to
him as needed. Trust was, therefore, a touchstone of the employer/employee relationship.
The termination letter of February 22, 2010 outlined the misconduct engaged in by Mr.
Hussain and which resulted in his termination as follows:
“As you are aware, the employer conducted an investigation into allegations that you violated the
Ministry Standards of Conduct, the Public Service of Ontario Act, 2006, Ontario Regulation
381/07; the Freedom of Information and Protection of Privacy Act (FIPPA); the Workplace
Discrimination and Harassment Prevention (WDHP) policy and the Operating Procedures for
Use of I and IT Resources.
On January 28, 2010, you attended a predisciplinary meeting to discuss the allegations that were
set out in my letter to you dated January 20, 2010. I was in attendance at this meeting, as was
Suzi Ardito, Manager, Enforcement Services, Heather Hanrhan, Human Resources Advisor and
Jackey Powell, OPSEU representative. At this meeting you denied the allegations, indicating that
you felt “mental pressure” was put on you during the investigative interview with the Forensic
Investigation Team (where you agreed that you had created falsified pay stubs). You also
indicated that you do not recall forwarding confidential information to a non-MCSS individual,
and that you had not received training on the I and IT and WDHP policies.
Based on the findings of the fact finding exercise, the Ministry’s review of these findings, and the
response that you set out above, the Ministry finds that the following misconduct has been
substantiated:
1. You prepared falsified paystubs at the request of your manager which is a violation of the
Ministry Standards of Conduct (Standard #5: Lawful and honest conduct).
2. You disclosed confidential MCSS documents to a non-MCSS individual which is a
violation of the Public Service of Ontario Act 2006, Regulation 381/07, Section 5(1) and
the Freedom of Information and Protection of Privacy Act (FIPPA).
3. You used Ministry resources for conducting your personal accounting tax business
during government work hours which is a violation of the Public Service of Ontario Act
2006, Regulation 381/07, Section 8(1)(8) and The Information & Technology (I & IT)
Operating Procedures for Use of I & IT Resources, Section 4.3.
4. You used government I.T. resources and government email to distribute images of an
inappropriate nature, including images of a violent nature. This is a violation of the
Workplace Discrimination and Harassment Prevention (WDHP) Policy, and a violation
of The Information & Information Technology (I & IT) Operating Procedures for Use of I
& IT Resources, Section 4.3.
After considering all the information at hand, including mitigating factors, and with the
concurrence of the Assistant Deputy Minister, by the authority delegated to me under Section 44
of the Public Service of Ontario Act, you are hereby dismissed for cause in accordance with
section 34 of the Act, effective immediately. You have the right to grieve your dismissal.”
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In order to prove the assertions set out in the termination letter Employer counsel, Mr.
Benjamin Parry, called upon five witnesses:
1. Mr. David Langille – a forensic specialist from the Corporate Security Branch engaged in
IT forensics.
2. Mr. Ted Kopp – a forensic investigator, member of the Forensics Investigation Team
(F.I.T.) which is associated with the Ontario Internal Audit Division.
3. Mr. Dan Beckman – a corporate investigator also with the Forensics Investigation Team,
Ontario Internal Audit Division.
4. Ms. Denise Karki – Senior Manager with the Client Services Branch of the Family
Responsibility Office.
5. Ms. Nancy Liston – Director of Client Services Branch of the Family Responsibility
Office.
I do not propose to review in detail the testimony of each of these witnesses. I will, however,
attempt to set out the substance of the evidence they introduced without necessarily
identifying through which of the witnesses it was introduced. Notwithstanding that, it is
perhaps fitting to first consider some of the testimony given by Ms. Nancy Liston, the
Director of the Client Services Branch for the Family Responsibility Office. It was Ms.
Liston who ultimately signed off on Mr. Hussain’s termination letter after having considered
the reports made available to her by the various investigators as well as senior staff with
whom she consulted.
[10] Ms. Liston testified that Ms. Hussain was not a target of the original investigation. Rather,
the existence of a computer blog which proved to have been hosted by a member of the
Family Responsibility Office had been brought to the attention of management. Apparently
the blog came to be a forum for inappropriate, demeaning and critical comments concerning
staff as well as managers within the Family Responsibility Office. Amongst others, the
Grievor’s immediate manager Mr. Osmand Bangura was implicated in the blog and
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subsequently investigated. The forensic IT investigation of Mr. Bangura, and in particular,
his workplace computer activity led to concerns about communications between him and Mr.
Hussain. That in turn led to a forensic investigation of Mr. Hussain himself. Those
connections or the string of connections leading to Mr. Hussain started with a Mr. Aboutaeib
who was employed in the Client Services Branch of the Family Responsibilities Office. Mr.
Aboutaeib had a business relationship with the Grievor’s manager, Mr. Osmand Bangura.
That business, Freedom Mortgage Financial Solutions (FMF Solutions) was a mortgage
brokerage operation, unrelated to the work of those two with FRO. Mr. Aboutaeib had been
found to be a moderator of the inappropriate blog and his business connection with Mr.
Bangura led to an investigation of the two. Ultimately the IT investigation of Mr. Bangura
disclosed communications with Mr. Hussain involving the mortgage broker operation. The
chain of relationships led to a thorough investigation of Mr. Hussain within the workplace
which began with an IT forensic investigation of his computer including his e-mail
correspondence and network drives and connections.
[11] Mr. David Langille was responsible for the IT examination of a number of employees, in
particular, Mr. Hussain. From the data he acquired he prepared a report for management
outlining his findings. He testified at length concerning those. Since there was no significant
challenge either to his credentials or his methodology and, indeed, to the sources of the data
he collected, I have simply reproduced below the substance of his report. However, those
findings should be viewed in the context of the functions of the Family Responsibility Office
and its duty of care and privacy to its clients.
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[12] Essentially, FRO acts as a type of clearing house which oversees the flow of family support
payments from one spouse to another in respect of both spousal and child matters. It is
FRO’s function to ensure that Orders made by the courts and domestic support agreements
which have been filed with the courts are enforced. In that capacity, FRO and its staff have
access to and indeed records of private financial information of its client Payers and Payees
including their personal bank accounts, addresses, birth dates and even drivers’ licences. In
the circumstances, FRO officers are trained in matters of privacy and confidentiality.
Policies and Procedures with respect to privacy and confidentiality are always available from
workplace computers with the click of a mouse. When opened, the first computer screen
flags these links. Additionally, FRO officers such as Mr. Hussain who have access to private
and confidential information are obliged to swear or affirm an Oath of Office and Secrecy
with respect to information and documents coming to them by reason of their office as a civil
servant. In the case of Mr. Hussain himself, as a financial officer he had access to this
private and confidential information through the Ministry’s “MECA” system. In particular,
as and when amendments were made to Support Orders by the Courts it would be within Mr.
Hussain’s duties to enter that program and make the appropriate changes.
[13] In addition to the Policies regarding confidentiality, employees are instructed concerning
involvement in work or businesses outside their duties for the Ministry. While the restriction
on such activity blankets all forms of work, special dispensation or permission to be so
engaged is also available in the discretion of the Ministry. However, in order to obtain such
permission a formal application must first be filed following which, if appropriate, consent
will be granted.
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[14] With those considerations in mind, I have reproduced below the Report provided by the
Corporate Security Branch in respect to the forensic IT investigation conducted by Mr. David
Langille:
1. Overview
On April 8th 2009, IT Forensics was requested by the Ministry of Community and Social Services to initiate an
investigation into the IT activity of Mr. Faisal HUSSAIN, based on the results of an internal investigation.
More specifically IT Forensics was requested by Ms. Trinela CANE to investigate Mr. Faisal HUSSAIN with
regards to inappropriate use of Government of Ontario IT resources.
This document provides a description of the sources of forensic data and related findings of
evidence.
2. Sources of Forensics Data
Forensic data used in this investigation and analysis was retrieved from the following sources:
• One(1) Workstation HSCPFRODT00094, 142.107.98.183; Evidence Number CSB09-002-41
• One (1) Email account for Mr. Faisal HUSSAIN as of April 29th 2009; evidence number CSB09-002-42
• One (1) Network Drive – hussaif as of May 25th 2009; Evidence Number CSB09-002-43
• Webfilter Reports for March 2nd 2009 to April 24th 2009; Evidence Number CSB09-002-44
• One (1) Network Drive – hussaif as of March 31st 2009; Evidence Number CSB09-002-45
3. Findings
A forensic examination, using specialized software, of the acquired data resulted in the following findings:
Creation of Fraudulent Pay Stubs
Emails
Afsan Begum
• On December 13th 2007 Mr. Faisal HUSSAIN sent a pay stub for “Afsan Begum” to
Mr. Osmand BANGURA.
• On December 17th 2007 and December 18th 2007 email conversations showed a
planned real estate transaction where Mr. Faisal HUSSAIN was selling his property
to Afsan BEGUM, who was in turn using Mr. Osmand BANGURA as the mortgage
broker.
Alysse A BENNETEAU
• On October 1st 2008 Mr. Faisal HUSSAIN received an email From Mr. Osmand
BANGURAA (osmand@fmfsolutions.com) with the subject “NEED A FAVOUR”.
The request was for a pay stub for Alysee A. Beneteau”, with salary, SIN, employer
and position information provided. On October 2nd 2008 Mr. Faisal HUSSAIN sent
an email to Mr. Osmand BANUGURA (osmand@fmfsolutions.com) with the
completed pay stub.
(PAYROLL aLYSSE.xls)
• On October 3rd 2008 three emails were exchanged regarding the formatting of the
pay stub.
Fidela AMURAO
• On October 7th 2008 Mr. Faisal HUSSAIN received an email from Mr. Osmand
BANGURA (osmand@fmfsolutions.com) with the subject “Another Favour
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Please.” The Request was for a pay stub for Fidela AMURAO; with SIN, DOB,
home address, salary and employer information provided.
• On October 7th 2008 Mr. Faisal HUSSAIN replied to Mr. Osmond BANGURA
(osmand@fmfsolutions.com) and attached a pay stub for Fidela AMURAO
(PAYROLL .fidela.xls). A thank-you reply from Mr. Osmand BANGURA was
received on the same day.
Network Files
• There are 5 Excel files, containing pay stub information for the individuals referenced above, in his
Network drive with modified dates between December 12th, 2007 and October 7th 2008.
Personal Business
• Mr. Faisal HUSSAIN has been doing financial work for various companies and clients since October 3,
2005.
o There are 72 emails with 186 attachments (Excel, Word and PDF files) related to this work,
with dates between October 3rd 2005 and April 23rd 2009.
o There are 19 temporary internal files (Excel files and web pages) with modified dates between
November 12th 2008 and April 28th 2009.
o There are 7 Excel and Word files in his Network drive with modified dates between December
29th 2005 and June 2nd 2008.
o Internet history shows access sites that may be related to his Personal Business.
• March 3rd 2009 – corporationscanada.ic.gc.ca
• March 23rd 2009 – corporationscanada.ic.gc.ca
• March 25th 2009 - – Canada Revenue Agency
• March 31st 2009 - – Canada Revenue Agency
• April 6th 2009 – Canada Revenue Agency
Deleted Documents
• Between March 31st 2009 and April 29th 2009, Mr. Faisal HUSSAIN deleted 66 documents related to the
fraudulent pay stubs and his personal business. Lnk files in his “Recent” folder show that he last access 4
of these files on April 23rd 2009 between 2:51pm and 3:00pm suggesting that the files may have been
deleted at this time.
• On April 23rd 2009 between 10:43 and 11:01, Mr. Faisal HUSSAIN sent 4 emails to his personal email
account (faaysal@hotmail.com), containing attachments and information related to his personal business
activities.
Mr. Langille during his testimony took us through a myriad of documents including e-mails
and documents accessible on and from Mr. Hussain’s work computer. The following
represents a brief elaboration of the findings in that report based upon Mr. Langille’s
evidence:
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1. In December of 2007, Mr. Osmand Bangura, the Grievor’s direct manager in the FRO
office, was running a mortgage brokerage business. Mr. Bangura asked the Grievor Mr.
Hussain to create a pay stub for an individual named Afsan Begum. Mr. Bangura
provided the information for the payroll record including the name of the employer,
Express Law Services, as well as the annual income to be displayed. Mr. Hussain was to
create the payroll record or records showing the usual deductions etc. for tax and other
purposes. Mr. Hussain accommodated the request using an excel spread sheet and a
format identical to that used by the Ministry for its own employees. Of course the record
in this case reflected Express Law Services rather than the Province as the employer. In
any event, subsequent correspondence via e-mail indicated that the mortgage loan being
brokered by Mr. Bangura related to the potential purchase by Mr. Begum of the Grievor’s
own home. When the mortgage application failed with the financial institution, so too
did the potential sale to Mr. Begum of Mr. Hussain’s home. Notwithstanding these
records, there was no evidence as to whether or not Mr. Bangura had submitted the
payroll record created by the Grievor to any financial institution or bank in support of a
mortgage application for Mr. Begum
2. The second payroll record requested by Mr. Bangura for Ms. Alysse Beneteau was
almost a year later in October of 2008. The employer was to be set out as the Ontario
Dental Institute and reflected an annual income of $148,000. Again Mr. Hussain
prepared the requested payroll record and complied with a subsequent request to alter the
document so that it appeared to be more authentic than in the original format.
3. Shortly thereafter again in October of 2008 a similar request was made by Mr. Bangura
on behalf of Fidela Amurao. In this case Ms. Amurao herself was a FRO employee
working in the same office as Mr. Hussain. Notwithstanding that, the payroll record was
to reflect her employer as Freedom Mortgage Financial Solutions, that is Mr. Bangura’s
own brokerage, and reflect an annual salary or income of $75,000.
4. Again, as in the case of the payroll record of Mr. Afsan Begum, there was no evidence as
to whether or not the payroll record for Ms. Beneteau was used to support a mortgage
application with a financial institution. On the other hand, subsequent inquiry by another
investigating officer whose evidence will be referred to later did confirm with a lending
institution that it had received the payroll record prepared by Mr. Hussain for Ms.
Amurao in support of a successful mortgage application.
[15] With respect to those findings and the others made by Mr. Langille and referred to in his
Report, they were canvassed with Mr. Hussain himself in an interview conducted by Mr. Dan
Beckman, a Court Investigator and member of the Forensic Investigation Team of the
Ontario Internal Audit Division. That team was appointed to complete the investigation
concerning, amongst others, Mr. Hussain. That interview took place on August 7, 2009 at
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which time Mr. Hussain had available a union representative, Ms. Jacquelyn Powell. A
transcript of that interview was admitted into evidence upon agreement of counsel. I do not
propose to reproduce that transcript here except to note that there were acknowledgments by
Mr. Hussain that he was the author of many of the e-mails and other documents discovered
and reported by Mr. Langille. On the other hand, Mr. Hussain initially denied any
knowledge of the purpose for which those documents were needed. Mr. Beckman gave direct
evidence concerning the interview of Mr. Hussain including a review of the transcript.
[16] The lead investigator from the Forensic Investigation Team (FIT) was Mr. Ted Copp. As
project lead Mr. Copp reviewed all reports including that prepared by Mr. Langille together
with all the documents he had reviewed as well as the transcript of Mr. Hussain’s interview.
Under his guidance as FIT project lead in this investigation a report was prepared and issued
in November of 2009. A copy, of course, was provided to Ms. Nancy Liston the Director of
the FRO office who signed off on Mr. Hussain’s termination as referred to earlier in this
award. The Report prepared by the FIT office incorporates the findings made by Mr.
Langille and responses made by Mr. Hussain during his interview as reflected in the
transcript introduced at the hearing. I have considered Mr. Copp’s testimony concerning that
Report and his findings in the context of the evidence introduced by Mr. Langille and that of
Mr. Beckman and I am satisfied that the FIT Report fairly reflects the information which was
taken into consideration, examined and formed the substance of that Report. Of course, that
Report reflects the information gathered from the interview of Mr. Hussain by Mr. Beckman
since he and Mr. Copp are members of the FIT team. The Report describes the full extent of
the FIT investigation under the heading Methodology as follows.
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Page 5 – 1.2 Methodology and Investigation Involved: The Investigation Involved:
• Review draft report findings of Corporate Security Branch, IT Forensics
• Conduct a desk/office search
• Assemble documentation relevant to the allegations pertaining to the subject staff
• Analyze information/date
• Interviews with FRO staff for purposes of obtaining additional information
• Prepare for interview with the subject staff (includes co-ordination and consultation with IT
Forensics)
• Interview subject staff, document and analyze additional information obtained from
interview
• Corroboration of information obtained as a result of the interviews
[17] Of course, the IT investigation referred to above was that conducted by Mr. David Langille
and the interview was that conducted by Mr. Beckman. Additionally, a search was also
conducted of Mr. Hussain’s work area including his desk and its contents. Taking that
evidence in its entirety including in particular the interview of Mr. Hussain the following
elements were particularly informative:
1. Mr. Hussain acknowledged during the interview having prepared the pay stubs or payroll
records for each of the three individuals referred to earlier in this award.
2. Mr. Hussain originally protested that the documents he had prepared were simply
calculations for information purposes in response to a specific request from his manager.
He did not know the purpose for which the information or payroll record was to be used.
3. Mr. Hussain ultimately conceded that the first set of documents were to assist Mr.
Begum, a client of his manager’s mortgage brokerage business, to qualify for a mortgage
loan in order to facilitate the purchase of the grievor’s own home. Otherwise, Mr.
Begum’s income would not have been sufficient for him to qualify for the necessary
amount. I should note here that, although Mr. Hussain later denied these admissions, the
e-mail exchange in December of 2007 between Mr. Bangura, Mr. Hussain and finally a
Remax real estate agent together with the attachments, albeit circumstantial, were
themselves probative of the salient elements involved in that transaction and the need for
those pay stubs.
4. There was no evidence that the payroll record prepared by Mr. Hussain was in fact used
by Mr. Bangura in support of the application by Mr. Begum for a mortgage loan. As luck
would have it, that initial application failed as did the sale of Mr. Hussain’s home at that
time.
5. In October of the following year, that is 2008, Mr. Bangura again presumed upon Mr.
Hussain to prepare payroll records for two other individuals. Although Mr. Hussain
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again in his interview claimed that he did not know the purpose of those documents, his
denial can hardly be considered reliable in the face of the earlier transaction involving his
own home. Furthermore, one of the latter two mortgage applicants, Fidela Amurao was a
co-worker of the Grievor in the FRO office. Although she was engaged in different
duties than Mr. Hussain, her work station was but a few desks away from his. It was
surprising that he would have claimed, as he did in his interview, that he really did not
know for whom he was preparing a payroll record at the time. Indeed, it was even more
surprising that he would not have considered the matter suspicious when the annual
earnings on the statement, prepared ostensibly on behalf of Mr. Bangura’s own mortgage
company as employer, was for an amount of $75,000. Additionally, Mr. Copp
investigated further and, having identified the lending institution subsequently received
an e-mail from an official there. The official confirmed that the institution had received
the financial information prepared by Mr. Hussain in support of a mortgage application
and, the loan to Ms. Amurao had been approved.
6. In addition to the foregoing there was, in password-protected memory accessible only to
Mr. Hussain, a multi-year history of business documents relating to and prepared on
behalf of numerous business entities. There were, for instance, applications for
incorporation and, in some cases instructions on how to file business documents with
agencies of Government. There were also year-end financial statements as well as annual
corporate returns. While Mr. Hussain indicated that he did this work and prepared this
material only for friends and family and not for financial gain, there was among the
various documents an invoice issued by Mr. Hussain to at least one of the various entities
for services rendered. None of the principles of the various entities had names similar to
Mr. Hussain.
7. Finally, there were two video clips received by Mr. Hussain which he subsequently
forwarded on to both his own home e-mail address as well as that of his wife. One of
those videos was considered offensive since it displayed graphic violence against women.
The other was found offensive since it sought to equate Israeli conduct with that of Nazi
Germany.
[18] The FIT Report, in addition to findings made by Mr. Langille elaborated on some of those
findings and added certain other relevant facts. Among those were the following:
1. The FIT investigation in its analysis of the IT Report and attachments clarified that there
were e-mails and documents extraneous to Mr. Hussain’s FRO work commencing as
early as October 2005 and ending on April 23rd, 2009.
2. Internal usage by Mr. Hussain for the brief period from March 2nd, 2009 to April 24th,
2009 indicated a total of 1,012 minutes of internet access extraneous to FRO work.
“Generally some internet usage occurred each working day, to a maximum of 75 minutes
in one day (April 6, 2009). The total usage equates to an average of approximately 26.6
minutes per day”. That usage did not include any time spent on his work computer
composing and completing the documents discovered.
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3. Aside from the Oath of Secrecy signed by Mr. Hussain in 2002 and the annual reminders
to staff to review the current policies which included those regarding confidentiality, on
July 10th, 2008 the FIT Report recorded that a memorandum had been issued to all staff
by the Deputy Minister which detailed “the responsibilities and expectations for public
servants having personal or pecuniary interests that could raise an issue under the COI
Rules, to notify the Deputy Minister of any conflict of interest situation, whether it be
potential, perceived or actual.”.
That memorandum referred employees to the conflict of interest rules and the website
where they could be accessed. It clarified that employees were “restricted in respect of
employment or engagements outside of our employment with the OPS”. It went on to
clarify that staff “have a clear obligation under the PSOA to notify me, in my capacity as
the ethics executive, if you have personal or pecuniary interests that could raise an issue
under the rules”.
4. Notwithstanding his apparent commercial business during working hours, there was no
evidence that he attempted to notify the Deputy Minister of his activities or to seek
approval for that conduct.
5. With respect to the dissemination to non-FRO employees of confidential information, the
FIT Report noted that Mr. Hussain had accessed the confidential information of two FRO
clients which he shared with Asim Afzal a non-FRO employee. Mr. Afzal had, himself,
been seeking to apply for employment with the FRO Office and had sought support and
information from Mr. Hussain. Mr. Hussain was familiar with Mr. Afzal not only as
another potential purchaser of his home in 2007 but also as a client for whom he had
prepared business documents which were discovered during the IT investigation.
Additionally, the FIT team in searching Mr. Hussain’s desk had found documents
containing contact information for acquaintances which included Mr. Afzal.
6. Although access to the private information made by Mr. Hussain was legitimate and done
during the course of his regular duties, the disclosure and transfer of that information to
Mr. Afzal was contrary to his Oath of Secrecy amongst other things.
[19] Prior to his termination Mr. Hussain was given notice of a pre-disciplinary meeting. He was
advised of the various allegations which would be the topic of discussion and chose to reply
to those in advance in writing. His reply included the following elements:
1. Amongst other things, while he had acknowledged preparing and e-mailing the various
payroll records which had been identified during his interview, he now chose to disclaim any
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recollection of having prepared the many payroll stubs or records which he had initialled
during the interview.
2. At the same time, and in marked contradiction, he asserted that the payroll records had been
“made only for the calculation purposes which was requested by my manager. The
document was prepared in the Excel Worksheet and Ministry software was not used for this
purpose”.
3. Essentially Mr. Hussain seems to have been reverting to his original position in the interview
which was to deny that he knew the purpose of the payroll records which he had prepared
and that the extent of his work was simply to perform calculations in compliance with
instructions from his manager.
4. With respect to his having provided confidential information to a non-FRO person, Mr.
Hussain had no recollection whatsoever of having done so.
5. With respect to the allegation that he had been conducting a commercial business during
work hours with government equipment, Mr. Hussain asserted that he was not engaged in
such a business for financial gain and that he, in any event, was not doing accounting or tax
work on government equipment.
6. Furthermore, he denied having had any training or been notified of the government policy
regarding the improper use of information technology and/or the confidentiality requirements
with respect to personal information retained by FRO with respect to its clients.
7. Finally with respect to the inappropriate videos which he had received and forwarded to his
home computers, Mr. Hussain again took the position that he had no training with respect to
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workplace discrimination policies and that in any event he had not or could not recall
distributing any inappropriate images.
The Human Rights Complaint
[20] As indicated in an earlier interim award concerning Mr. Hussain, the matter before me also
encompasses his allegations that he had been discriminated against contrary to the Human
Rights Code of Ontario. In compliance with my order at that time, the union did provide
particulars of those allegations. Additionally, the Board was provided with a copy of Mr.
Hussain’s complaint which had been filed with the Ontario Human Rights Commission.
Each of the several employer witnesses who testified were available and to a greater or lesser
extent were examined by employer counsel and cross-examined by union counsel with
respect to those allegations. In particular, we heard from Mr. Langille and Ms. Liston as to
the original investigation into the creators and moderators of the inappropriate blog and the
chain of contacts from that blog to members of FRO including Mr. Hussain’s manager and
ultimately to Mr. Hussain himself.
[21] In addition to that, Ms. Liston testified concerning several individuals identified by the
Grievor and alleged to have been running businesses or involved in work outside their FRO
duties. Ms. Liston confirmed that in each case with which she was familiar the individual
had sought and received approval from the Deputy Minister for that work. In no case was
there evidence provided of any individual who had not applied for and received the
appropriate clearance from management. Furthermore, there was no evidence whatsoever
that any of them had or were conducting work or businesses outside of their FRO duties
during regular FRO working hours.
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The Discussion
Computer Piracy
[22] The first issue to be determined is whether or not the Grievor himself was responsible for the
myriad of documents and e-mails discovered through his computer. To put it another way,
did some other person or persons without Mr. Hussain’s knowledge have access to his
computer.
There are any number of reasons most of which were identified by Mr. Parry for the
Employer, as to why it must be concluded that Mr. Hussain himself was the author of the
material. To make that determination the following elements must be considered:
1. Mr. Hussain never identified another FRO worker who might have had regular access to
his computer or to whom he provided his password from time to time. Furthermore,
there was no evidence or even any suggestion from Mr. Hussain or the union as to why a
co-worker might have chosen to use Mr. Hussain’s computer to perform the tasks in
question. No other employee complained that someone had gained access to and
improperly used their computer.
2. During his interview Mr. Hussain had admitted to having authored the various e-mails as
well as the payroll stubs which were attached. His later attempt to retract his admissions
with respect to having prepared documents he had initialled, was at the same time, a
contradiction of his renewed contention that he had prepared them on the request or
direction of his manager. Regardless of whether or not that explanation is credible, it was
clear that Mr. Hussain himself was the author of all those documents which he exchanged
via e-mail with Mr. Bangura, his manager. Additionally, of course, his excuse that his
manager had provided all the information and that he had simply done the calculations to
show tax and other payroll deductions also confirmed his authorship.
3. Aside from his qualified admissions, there were elements involving the use and access to
his computer which suggested that Mr. Hussain and no one else had access to it. For
instance:
(a) the computer is password protected;
(b) the password expires every 90 days and must be renewed;
(c) the exchanges involving payroll stubs occurred during a series of exchanges
primarily between Mr. Hussain and Mr. Bangura over a number of days in
December of 2007 and then again over an extended period of time with respect to
the second set of documents in or around October of 2008. Although Mr. Hussain
might have left his open computer unattended from time to time while going for
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coffee or lunch for instance, it would be more than surprising that another person
could have authored these e-mails and followed up on them in a timely fashion
without regular and uninterrupted access. At no time has Mr. Hussain
volunteered that he shared his password or any of its replacements from time to
time with any other person. Neither did he contend or report that on returning to
his computer from time to time he saw someone using or leaving his desk. Nor
did he report having found unknown material on his computer.
4. The payroll records he created were not simply resident within his e-mail account but had
been created within his hard drive and stored within the government server for several
years. Surely if someone else had improperly accessed his computer Mr. Hussain would
have become aware of that improper activity and taken steps to put an end to it.
[23] In the circumstances, I am satisfied and find that Mr. Hussain was indeed the author of the
various e-mails and payroll stubs referred to in the reports prepared by Mr. Langille and the
FIT Team. Furthermore, for similar reasons it is clear that the commercial documents
prepared over an extended period of time from 2005 through to 2009 were authored by Mr.
Hussain himself. In addition to the foregoing, and again for similar reasons regarding the
nature of the exchange and the password protections and accessibility issues, I am satisfied
that the exchange between Mr. Hussain’s computer and that of his acquaintance Mr. Asim
Afzal authored by no one but the Grievor himself. Furthermore, in doing so it was clear that
Mr. Hussain did indeed access the FRO MECA account containing confidential information
of clients. Although his access was legitimate, his conduct in transferring that data to Mr.
Afzal was a direct violation of his Oath of Secrecy with respect to the confidential nature of
clients’ information. This now brings me to consideration of Mr. Hussain’s culpability with
respect to the various transactions and material on his computer.
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The Pay Stubs
[24] The first series of pay stubs requested by Mr. Bangura identified Mr. Afsan Begum who
according to the payroll record was an employee of Express Law Services for immigrants
etc. It reflected an annual gross pay of approximately $100,000. As indicated earlier in this
award, it was clear from the series of e-mails and in particular that from the ReMax real
estate agent that Mr. Begum was a potential purchaser of the very home owned by Mr.
Hussain. Furthermore, Mr. Bangura was the mortgage broker assisting Mr. Begum in his
search for mortgage financing to complete a purchase of the home. The purpose for which
Mr. Bangura sought the payroll record was to support a mortgage application to be made on
behalf of Mr. Begum to a financial institution. Since there was no dispute that the home in
question belonged to Mr. Hussain himself and that Mr. Bangura, aside from being the
Grievor’s FRO manager, was operating a mortgage brokerage as Freedom Financial
Services, the nature of the transaction and the need for the payroll record for Mr. Begum can
easily be gathered from the exchange of e-mails. Accordingly, it is clear that Mr. Hussain, a
financial officer, would have recognized that the purpose of the payroll record requested by
Mr. Bangura was to support a mortgage application made on Mr. Begum’s behalf with
respect to the potential purchase of Mr. Hussain’s home. There was no evidence that Mr.
Begum worked for Express Law Services or that Mr. Hussain or Mr. Bangura had authority
from that organization to prepare a payroll record reflecting annual income of that amount for
Mr. Begum. Indeed, Mr. Hussain during his interview acknowledged that neither he nor Mr.
Bangura worked for that organization. Accordingly, it is doubtful that the pay stubs were
themselves legitimate and fairly reflected income earned by Mr. Begum from that
organization. Furthermore, it is probable that Mr. Bangura intended to use the documents to
support his mortgage application. Indeed, although he later denied this knowledge, during
- 21 -
his interview Mr. Hussain confirmed that Mr. Begum’s regular income was not enough to
support the mortgage application; hence, the need for these payroll records. However, there
was no evidence as to whether or not these documents were actually used by Mr. Bangura
with respect to a mortgage application on behalf of Mr. Begum. The evidence indicated only
that the mortgage application was unsuccessful such that the sale of Mr. Hussain’s house
could not proceed at that time. Accordingly, there was no direct proof that a fraudulent
transaction had been attempted or taken place. Notwithstanding that, it was clear that there
was a scheme here designed by Mr. Bangura and participated in by Mr. Hussain to secure a
mortgage loan which would not otherwise have been available but for this series of payroll
records created for Mr. Begum. Furthermore, since it was his own home which was to be the
subject of the mortgage and the real estate transaction, the Grievor must have been a knowing
participant in the scheme. He was not as he protested simply performing calculations for an
unknown purpose at the request of his manager. Although there was no evidence that the
documents he prepared were used for fraudulent purposes, they were certainly crafted for and
made available to Mr. Bangura for such purposes. Finally, although the Begum mortgage
transaction did not come to fruition, another for Ms. Amurao was successful in or about
October of the following year.
[25] The third set of payroll documents prepared by Mr. Hussain at the request of Mr. Bangura
identified the employee as Fidela Amurao, another FRO employee whose desk was not that
far from that of Mr. Hussain. In this case, the purported employer was Mr. Bangura’s own
Freedom Mortgage and Financial Solutions Corporation. The payroll records were prepared
on the premise that Ms. Amurao earned a gross income of $75,000 per year. As at the end of
September her year to date gross salary was shown as approximately $57,700.00 dollars.
- 22 -
With respect to these documents, during his interview Mr. Hussain claimed that he did not
know that this Fidela Amurao was one and the same person who worked for FRO. He said
that he asked the same question of Mr. Bangura who told him not to worry about it and simply
do the calculations. Taking into consideration that Mr. Hussain and Ms. Amurao worked in
the same office and that Mr. Bangura was a manager there, it is beyond belief that Mr.
Hussain would not have realized that this was indeed one and the same Fidela Amurao who
worked in that office. In any event, Mr. Hussain did not inquire as to whether or not the
Fidela Amurao on these payroll records was employed by Mr. Bangura’s mortgage company.
Rather, he prepared the documents in accordance with Mr. Bangura’s request. In view of the
earlier transaction involving his own home, I have no hesitation in finding that Mr. Hussain
knew the intended purpose of the payroll records which he had been asked to prepare. He
must have recognized that they were, as in the case of the sale of his own home, required to
support a mortgage application. Mr. Copp, the FIT team investigation leader, testified that he
had received confirmation from the financial institution that it had approved and granted a
mortgage loan to Ms. Amurao based upon these very payroll records. That confirmation was,
of course, of a hearsay nature and cannot be relied upon to confirm a fraudulent transaction to
which Mr. Hussain was privy. However, it does lend credence to the Employer’s concern that
its employees were engaged in fraudulent activities.
[26] Whether or not any of the material prepared by the Grievor was actually supportive of a
fraudulent transaction, I am satisfied in all the circumstances that Mr. Hussain, a person
skilled in financial matters, would have known or ought to have known that the purpose of the
payroll records he had prepared was to support mortgage loan applications. Furthermore,
common sense dictated that had the named payee been a legitimate employee of the identified
- 23 -
employer, he or she could have and should have obtained the necessary income confirmation
directly from his or her employer. That Mr. Hussain would not have recognized the real
purpose of these records and that they were most probably false is simply not believable. It is,
therefore, my finding that Mr. Hussain was engaged in conduct as a participant in a scheme
with this manager, Mr. Bangura, which might have involved a fraudulent misrepresentation to
one or more financial institutions. The preparation of those documents was, therefore, in and
of itself inappropriate especially since those documents were resident on government servers
and were exchanged through the Grievor’s computer and during working hours. That Mr.
Hussain engaged in that conduct knowing the likely purpose for which the material would be
used was in and of itself culpable conduct. That a financial officer working in the FRO
offices wherein integrity of service and that of employees must be of paramount importance,
should engage in such activity is simply untenable. Had any transaction gone bad after
coming to fruition and subsequently attracted media attention, the embarrassment to the FRO
office would have been significant. This work performed by the Grievor outside of his
regular duties conflicted with the duty of integrity to which he owed his employer. His
interests were in conflict with those of his employer and even more so because his activities in
this regard were performed in part during working hours and on FRO equipment. It was,
therefore, grave misconduct worthy of significant discipline.
Mr. Hussain’s Commercial Business
[27] As indicated in the IT Report by Mr. Langille and expanded in the FIT Team Report, there
was significant corporate and financial data stored on and through Mr. Hussain’s computer in
his password protected government files. These documents were dated from as earlier as
2005 and ran up to April of 2009. The IT Report from Mr. Langille indicated that an attempt
- 24 -
was made probably in April of 2009 to delete approximately “66 documents related to the
fraudulent pay stubs and his personal business”. That extensive time frame and the sheer
number of transmissions back and forth between his home computer and his work computer
make it clear that it was Mr. Hussain himself who was engaged in these activities. As to Mr.
Hussain’s explanation concerning the business documents which included such things as
financial records and incorporation applications, Mr. Hussain claimed during his interview
that he performed these tasks only for friends and family and not for financial gain. Of
course, we have only Mr. Hussain’s assertion to that effect during his interview and no
testimony to confirm that information. A review of the documents and the correspondence
concerning this material indicates that none of the contacts and persons for whom the work
was performed had the same surname as Mr. Hussain. Additionally, there was at least one
invoice for services performed by Mr. Hussain within the resident documents. Finally,
whether he was performing this work for gain or not and whether or not much of the work
was performed on his home computer, he had been devoting significant work time to handling
these tasks and this material from his work computer. As indicated earlier for March 2, 2009
to April 24, 2009 an average of one-half hour per day was devoted to internet access relating
to these matters, which were not in any way related to his FRO duties except in so far as the
work fell within his skill competencies and were commercial or financial in nature. The
Grievor claimed he was performing this work for friends and family for free and simply to
keep up those skills which he enjoyed but which he did not require or exercise during his FRO
duties. Be that as it may, on any number of occasions the work on these documents appear to
have been performed on and resident within his government equipment since it was
subsequently e-mailed to his home computer. This suggests that some of the work, aside from
- 25 -
the internet access alone, was performed at his FRO work station and upon completion sent to
his home computer. In summary, there were at least three problems regarding this material:
1. It was a substantial body of work spanning several years all of which was resident on
government equipment;
2. Whether or not much of the documentation was prepared at his work station or at home,
Mr. Hussain devoted a daily piece of his FRO work time to these extraneous financial
matters;
3. Whether for financial gain or not, Mr. Hussain was engaged in commercial work
extraneous to his FRO duties and for which he had neither notified his manager nor
sought approval to perform during non-working hours let alone on government paid time.
With respect to Mr. Hussain’s explanation or excuse that he had not been trained on the proper
use of IT equipment and/or that he was not aware that his activities for “outside clients” was a
violation of FRO policies, it does not stand up for several reasons:
1. Common sense dictates that employees would realize that engaging in another form of
work or activity such as that engaged in by Mr. Hussain during paid FRO working hours
would be inappropriate and indeed a conflict with ones duties to his employer;
2. The Policy restrictions with respect to the use of Ontario government IT resources such
as Mr. Hussain’s computer and related equipment was always available and indeed
flagged with a daily pop up on his computer. That Mr. Hussain might have failed to
respond to notices provided by management to review and consider the posted
information is not an excuse for his ignorance. The Notice, although not referred to
earlier in this award provides in part as follows:
Government of Ontario Information Technology (IT) Resources are to be used exclusively
for government business unless otherwise approved by your manager.
This includes computers, laptops, e-mail, internet, extranet, personal digital assistants, etc.
Examples of inappropriate use of government IT resources include:
1. Accessing, displaying, downloading, creating, distributing or storing any
software, graphics, images, texts, music, video or other data (including e-mail messages
and attachments) which are:
• offensive
• not required for government business
• prohibited from downloading due to copyright or other legal prohibitions.
2. Excessive use of government resources (e.g., unnecessarily downloading videos,
music and large files from the internet)
3. Operating a private business or using these resources for personal gain.
…
7. Using these resources to discriminate against or harass other employees
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8. Using these resources to create a hostile or humiliating work environment
9. Using these resources to conduct illegal activity.
[28] Whether or not Mr. Hussain took the time to review this notice and the linked policies and
procedures, he did so at his own peril. Furthermore, to devote a significant portion of each
work day to those matters clearly conflicted with his duty to his Employer which was paying
him for that time. In the circumstances, I find that this activity too constituted culpable
conduct by Mr. Hussain over an extended period of time. At least as significant was the fact
that Mr. Hussain did not acknowledge that engaging in those activities during work hours and,
in any event, without the approval of his manager was improper nor did he offer any apology
for having done so. In effect, Mr. Hussain has yet to take ownership of his wrongdoing with
respect to these activities. Additionally, rather than acknowledging that his conduct was
improper, Mr. Hussain tried to deflect responsibility by alleging that others were engaging in
similar activities with impunity.
Sharing of Confidential Information with a Third Party
[29] In March of 2008 there was a series of e-mails between a Mr. Asim Afzal and Mr. Hussain.
Mr. Afzal was interested in an upcoming exam with respect to his being an applicant for a
position in the FRO offices. He sought Mr. Hussain’s counsel and information to better
position himself as an applicant. In the course of the exchange, Mr. Hussain provided
internal FRO documents and precedents available for the guidance and use by FRO officers
in the fulfillment of their day to day duties. Additionally and more importantly, Mr. Hussain
in an e-mail to Mr. Afzal provided confidential client information concerning a case Payer
and a case Payee which was accessible only to FRO officers through the government’s
MECA system. That is a carefully governed system which is password protected.
- 27 -
Furthermore, any employee accessing the MECA system leaves behind an identifiable
footprint so that the access can be traced to him or her should the need arise. The material
conveyed to Mr. Afzal identified the actual FRO case number as well as the two client’s
names that is the Payer and Payee. The information transferred shows the opening balances
and a series of deposits and transfers in and out regarding support payments. Similar account
information for approximately a month and a half from the payee’s account were also
provided.
[30] Although Mr. Hussain had been informed of this accusation, in his pre-disciplinary memo to
Ms. Liston he claimed that “the document that I prepared (as I recall) was a draft, which was
done on the Excel Worksheet. I do not recall forwarding or presenting any confidential
document to any non-MCSS individual.”
[31] Since Mr. Hussain denied any such conduct, Mr. Parry for the Employer identified a number
of reasons to confirm that it was indeed Mr. Hussain who authored the e-mails and accessed
the MECA system to retrieve the information which was then forwarded to Mr. Afzal. These
included the following:
1. The information that is, the e-mails, were found on Mr. Hussain’s password protected
computer.
2. The initial request from Mr. Afzal was on March 27th at approximately 9:30 p.m. Mr.
Hussain responded to that at approximately 9:15 a.m. March 28th inviting Mr. Afzal to
“please give me a call, I could explain you about the exam…”. The invitation to have
Mr. Afzal call him confirms that it was indeed Mr. Hussain who had responded on this
occasion and that the two were acquainted. Furthermore, at approximately 10 a.m. Mr.
Hussain forwarded the FRO corporate documentation to Mr. Afzal while signing the e-
mail “Faisal”. Additional e-mails at approximately 4 p.m. that same day included the
confidential information referred to earlier. Further, it was confirmed that Mr. Hussain
had left a footprint in the MECA system when he accessed the accounts of the two clients
on the same day that this exchange took place with Mr. Afzal. And finally the desk
search of Mr. Hussain’s work station turned up a telephone directory wherein Mr. Asim
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Afzal was a contact. In all the circumstances, it was clear that it was Mr. Hussain himself
who was the party to the e-mail exchange with Mr. Afzal.
[32] In the circumstances, it was clear that Mr. Hussain had shared confidential password protected
FRO client information with a third party. That was in itself a direct and significant violation
of his Oath of Secrecy which he executed in 2002. In any event, again as in the case of the
time he devoted to financial work outside his FRO duties, common sense would dictate that
client information which was so carefully protected ought not to be shared outside the FRO
office. Again, it was not a satisfactory explanation that Mr. Hussain did not take the
opportunity to review the FRO Privacy Policies which were not only made available to him
but concerning which he had been urged to review.
[33] Although I have found that Mr. Hussain ought to have known that it would be improper to
share such information with outsiders, it was not clear that the specific event identifying the
exchange with Mr. Afzal in March of 2008 had been clarified as the incident in question. It
was not specifically referred to in his interview with the FIT Team nor was it clear that Ms.
Liston while alleging that he had violated the code, had also provided particulars as to the
identity of the clients and the nature of the material nor the timeframe when it was said that he
had acted improperly in this regard. It is possible, in the circumstances, that Mr. Hussain
might not have been fully apprised that these particulars concerned Mr. Afzal until this
proceeding was under way. Accordingly, while I find that Mr. Hussain did indeed breach the
confidentiality code and that he denied having ever done so, it cannot be said that he
knowingly denied the details concerning that breach. Therefore, while it was a serious breach
of protocol it cannot be said that Mr. Hussain knowingly denied the specifics of that breach
until the particulars became apparent during these proceedings. It is difficult, however, to
- 29 -
imagine that there could have been any satisfactory explanation for this fundamental breach of
clients’ privacy. In terms of the totality of his misconduct, this ranks with the most serious
and merits an equivalent disciplinary response.
The Defamatory and Discriminatory Videos
[34] Mr. Hussain did receive two videos each of which were totally inappropriate. One was
violent and demeaning of women. The other was racially discriminatory. Each of these were
inappropriate in nature and, if circulated by Mr. Hussain within the working environment,
would no doubt constitute a violation of the Province’s IT Resources Guidelines. In
particular, such activity might be considered a violation of restrictions 1, 7, 8 and possibly
even 9 which were set out earlier in this award. In this case, however, Mr. Hussain did not
widely disseminate the video which he had received via e-mail. Rather, after some time, he
forwarded the e-mails and attachments to his home and his wife’s home e-mail addresses.
While technically in violation of the first restriction by storing the material on his computer
and forwarding it to his home, rather than deleting it entirely, it was not in my view a
significant matter that he failed to delete it forthwith and went on to send it to himself. While
his conduct might warrant some form of discipline, it is my view that these circumstances
would not have merited any significant punishment notwithstanding the grotesque nature of
the material itself. It is, however, troubling that Mr. Hussain again asserted in his pre-
disciplinary memo to Ms. Liston that he had received no training on the Employer’s
Workplace Discrimination and Harassment Policy nor on its IT Policies and Procedures. His
explanation for much of the impugned conduct was to rationalize that the Employer had failed
and was at fault for not having provided appropriate training in matters which, in my view,
were fundamentally self evident.
- 30 -
The Human Rights Issues
[35] As indicated earlier, I had previously ordered that any Human Rights issues and allegations
raised by Mr. Hussain should be brought before me. Furthermore, the Union was directed to
provide detailed particulars of those allegations. Particulars in this respect were ultimately
provided by the Union. However, since Mr. Hussain failed to appear and/or testify the only
evidence on those matters was introduced through examination and cross-examination of the
Employer’s witnesses. Indeed, the Union had full opportunity to cross-examine these
witnesses on all matters including human rights allegations. Furthermore, during the course
of proceedings before me, Mr. Hussain was provided with a translator to insure that he
understood and was able to fully participate during the testimony of the various witnesses.
This was so notwithstanding that Mr. Hussain had been able to function satisfactorily in
English while working for eight (8) years as a government employee.
Among the allegations:
1. Of the employees who were identified with links to the impugned blog, no Caucasian was
disciplined.
In fact, Mr. Romano Carletti, a Caucasian, was investigated with respect to his
participation in the blog and ultimately terminated for misconduct which included aspects
similar to some of those for which Mr. Hussain was terminated. Those included the
inappropriate use of IT resources for personal business; the disclosure of confidential
information to non-government employees and the failure to take ownership of his
failures in this regard. Mr. Carletti’s termination was upheld in an arbitration award
issued by Vice Chair Janice Johnston dated November 25, 2011 (see GSB #2009-1144,
2009-1145). Furthermore, the evidence of all witnesses indicated that the selection of
Mr. Hussain for investigation had nothing to do with his race, colour or ancestry but
because of the extent of the investigation into his manager’s IT resources flowing from
his participation in the blog. Had Mr. Hussain not been implicated in what appeared to
be inappropriate transactions involving Mr. Bangura it is doubtful that he would have
been subjected to any investigation whatsoever.
2. There were allegations that at least two Caucasian employees of FRO were engaged in
outside businesses for which activity they had not been disciplined.
3. Ms. Liston testified that staff are indeed allowed to have second businesses. They are,
however, required to request approval from the Deputy Minister in order to engage in
- 31 -
secondary work. It is the Deputy Minister only and not Ms. Liston who makes the
determination as to whether or not the business activity might constitute a conflict of
interest with an employee’s FRO work. Ms. Liston was cross-examined regarding a Mr.
RR, a manager in Client Services who was also engaged as a real estate representative,
not as a broker. Ms. Liston testified that Mr. RR had advised her when he had
successfully completed his licence. At that time she advised him to get permission from
the Deputy Minister which to her best recollection took place in the late summer or early
fall of 2008. There was no evidence introduced that Mr. RR was engaged in real estate
activities during regular FRO working hours.
4. Ms. Liston also was questioned about employee CJ who was involved in a travel agency.
When Ms. Liston observed that Ms. CJ drove a car with paint advertising a travel agency
she advised CJ’s manager to follow up with an appropriate request to the Deputy
Minister. This she referred to as a declaration of a conflict of interest, it being the Deputy
Minister’s task to determine whether or not there was indeed a conflict which could not
be allowed. Subsequently, Ms. Liston was advised by CJ’s manager that the appropriate
application had been filed and approved by the Deputy Minister. Ms. Liston could not
recall the exact time frame during which these events arose with respect to Ms. CJ. In
any event, there was no evidence introduced that Ms. CJ operated a travel business during
regular working hours.
5. Ms. Liston also testified that employees’ IT resources are not regularly subjected to
routine IT forensic investigations. It would take some specific, inappropriate information
to trigger such an investigation as was the case in Mr. Hussain’s situation. That was, of
course, the series of exchanges between Mr. Bangura and Mr. Hussain which not only
appeared to involve work secondary to that at FRO during regular working hours but also
potentially fraudulent activity. That information came to the attention of management
through what had already started as a forensic IT investigation into the blog. On the
other hand, the secondary businesses regarding RR and CJ did not arise as a matter of IT
resources. There was, therefore, no reasons to suspect an IT violation or to prompt a
forensic investigation with respect to those two employees. As indicated, there was no
evidence introduced that either RR or CJ were conducting a second business during
working hours or through their government IT resources.
6. Several other FRO employees were alleged to be engaged in receiving and sending
inappropriate images and messages through their workplace computers including Mr. BR
who had originally sent the inappropriate video attachments to Mr. Hussain.
With respect to Mr. BR, Ms. Liston testified that, when management received the many
reports flowing from the blog IT investigation, they had to prioritize the persons and
issues to be pursued. Many employees who had used their e-mail inappropriately on only
one or two occasions received simply a general caution whereas those involved more
often and in more serious misconduct were pursued more vigorously. Mr. BR was far
from the top of the list. On the other hand the Deputy Minister did take the opportunity
to remind all staff of the policy concerning the inappropriate use of government e-mail
accounts. Ms. Liston as Director would not have been involved in any discipline less
than termination. Lesser matters were dealt with by the managers. Accordingly, she
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could not confirm whether or not Mr. BR had or had not been further investigated and
disciplined. He may well have been.
7. A Mr. ER was apparently the source of the inappropriate videos which were sent to Mr.
BR and in turn to Mr. Hussain. Ms. Liston who has about 350 people within her group
believed that ER was among her staff. However, she was unable to confirm whether or
not he had received some lesser form of discipline than termination since she would not
be involved at that lower level. In particular, at her level, that is, as Director, her concern
was more importantly upon potentially fraudulent activity in the workplace and breach of
client privacy.
8. Ms. Liston was also cross examined regarding the inappropriate use of e-mail by several
other FRO employees including Ms. GT, Mr. MN, Ms. AD and Ms. SA. She was
unaware as to whether or not any of these individuals had been investigated or disciplined
for inappropriate conduct. While there were allegations that these persons had exchanged
inappropriate images and other material, no evidence was introduced concerning those
allegations.
9. Ms. Liston was also cross examined with respect to the manner in which employees
might have been apprised or informed of the Workplace Discrimination and Harassment
Policies by the Employer. She confirmed, as was earlier reported in this Award, that
upon opening one’s computer the first screen speaks to its appropriate use and includes
links to IT and other policies and procedures including that to WDHP Policies. There is,
therefore, a daily reminder of an employee’s responsibilities with respect to the
appropriate use of computer resources. Among the various links is that to a training
module regarding WDHP Policies. In addition, as indicated earlier, e-mail reminders are
sent out periodically to staff concerning appropriate conduct in the workplace. In
particular, the Deputy Minister sent such a reminder to all staff in 2008 concerning the
declaration of conflicts of interest as well as WDHP. Finally, Ms. Liston testified that the
Assistant Deputy Minister conducted staff meetings every three months during which
WDHP issues were addressed on several occasions.
[36] In the circumstances, as indicated earlier, I was satisfied that Mr. Hussain had notice of all
relevant policies and procedures with respect to the use of his computer and government
information technology equipment as well as policies governing conflict of interest and
discrimination and harassment in the workplace. In particular, with respect to the human
rights allegations, I have considered the testimony of Ms. Liston, Ms. Karki as well that of
Mr. Langille, Mr. Beckman and Mr. Copp. In doing so, I have reviewed also the transcript of
the interview of Mr. Hussain and the examination and cross examination of Mr. Beckman
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who conducted that process. Having considered all available evidence including testimony
and documentation I was not satisfied that the Human Rights allegations put forward and
particularized in this matter were supported or substantiated through the evidence that was
adduced before me.
The Decision to Terminate
[37] In arriving at her decision to terminate Mr. Hussain, Ms. Liston emphasized that for the FRO
office, due to the sensitive nature of its operations and the personal information which is
maintained on an ongoing basis for its many clients, the integrity of its personnel is of the
utmost importance. She, as Director, must trust that they will perform their duties with
integrity and be candid in their dealings with members of management including herself.
With respect to Mr. Hussain, she was particularly troubled not only by reason of the four
elements of misconduct identified in the allegations against him but because of his failure to
take ownership or responsibility with respect to the matters under review. In particular with
reference to Mr. Hussain’s response to the allegations set out in the pre-disciplinary notice,
Ms. Liston testified as follows:
1. The Grievor withdrew from his concession that he did know the true intended purpose of
the payroll stubs he had prepared; rather, he reasserted his initial position that he had
prepared them for calculation purposes only. Ms. Liston testified that she did not believe
that the Grievor honestly understood that he was simply preparing calculations on the
direction of his manager.
2. Mr. Hussain claimed that he had initialled documents under duress during his meeting
with Mr. Beckman and that in the circumstances he “denied those initials”. Ms. Liston
testified that she believed Mr. Hussain had indeed initialled the documents and had done
so because they had been prepared by him as he had acknowledged during his interview
with Mr. Beckman.
3. Mr. Hussain claimed that Mr. Beckman had somehow pressured Mr. Hussain’s union
representative to compel Mr. Hussain to accept the allegations brought to his attention
during the interview. Ms. Liston testified that she was not present during the interview
but that her review of the transcript did not indicate that the union representative had
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unduly influenced Mr. Hussain to accept the allegations. Further, Ms. Liston
acknowledged that anyone involved as a subject in such an interview would feel stressed
but that there did not appear from the transcript that the Grievor had been put under any
more pressure than anyone else in similar circumstances.
[38] I have reviewed the transcript and the testimony regarding that interview and am of the view
that the union representative did not put undue pressure on Mr. Hussain to acknowledge or
agree with the allegations. If anything, she encouraged him to answer the questions and to do
so in a truthful manner. I do not consider that advice inappropriate and, in any event, it could
hardly be considered undue pressure. In the circumstances, Ms. Liston, as expressed in the
letter of termination of February 22, 2010 took issue with the denials expressed by Mr.
Hussain in his pre-disciplinary memo which he maintained during his pre-disciplinary
meeting with Ms. Liston and others. In view of his stated denials and her view that the four
elements of misconduct had been substantiated, Ms. Liston felt she had no option but to
terminate Mr. Hussain’s employment. It was suggested among the various allegations made
by Mr. Hussain that he was terminated at a time and because Ms. Liston believed he would be
filing a complaint with the Human Rights Commission; however, Ms. Liston testified that she
suspected Mr. Hussain would grieve his termination but did not suspect or become aware that
he had filed a Human Rights Complaint until more than a year after his termination.
Additionally, with respect to the suggestion or allegation that Mr. Hussain was handicapped
with respect to the English language, Ms. Liston testified that in over eight years of
employment, to her knowledge, there had never been an issue concerning his ability in the
English language. At no time had management been made aware that he had any disability
with respect to the English language. Furthermore, to her knowledge there were no problems
with his work which required proficiency in English to perform.
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I have considered the entirety of the evidence and the submissions of counsel and am satisfied
that Mr. Hussain knowingly engaged in the following conduct:
1. He was a participant in a scheme in which he fabricated payroll records the validity of
which was on balance improbable. Further, the probable use of such records was to
establish on behalf the named employee/payee an income level high enough to induce a
potential mortgagee to advance funds to the borrower sufficient to close a potential real
estate transaction.
Whether or not those transactions came to fruition, I am satisfied that Mr. Hussain must
have understood why Mr. Bangura had requested these documents and the likelihood that
they would be used to secure a mortgage loan. Indeed, it appears that at least one of the
loan transactions in favour of Ms. Fidela Amurao did proceed on the basis of the
document prepared by Mr. Hussain which indicated her employer as Mr. Bangura’s
mortgage brokerage company and her annual salary at $75,000. As a FRO employee her
annual earnings were closer to $50,000.
That, of course, was a dishonest scheme and Mr. Hussain’s participation in it reflected a
lack a personal integrity. Worse still, had any consequential transaction gone bad, the
results could have impacted upon the reputation of the FRO office itself.
In addition to my concerns about the participation of Mr. Hussain is the added concern
that he fundamentally refused to acknowledge any wrongdoing. In fact, he at first
suggested that he was under duress from his manager to perform what were simply
calculations and only conceded the purpose of the first set of documents when it became
clear that the transaction involved the sale of his own home and he had been backed into
a corner. That he later resiled from that admission and again sought to minimize his
culpability was ludicrous and only served to cast further doubt upon his integrity and
trustworthiness.
2. I am also satisfied that Mr. Hussain again failed to take ownership of his conduct when
he denied that he was engaged in work extraneous to his duties at FRO. The volume of
documentation discovered, the number of years involved and the amount of known time
devoted by Mr. Hussain during a brief period in March/April 2009 to internet activities
belie the possibility that the work was only occasional for family and friends and was
always, except on one rare occasion, performed at home. Furthermore, the existence of
the one invoice by Mr. Hussain to a client which included an amount for HST suggested
that he was indeed engaged in those personal activities for gain and profit. Again, in his
interview and in his pre-disciplinary meeting memo to Ms. Liston, the Grievor sought to
minimize the nature of his activities and the degree of wrongdoing. Indeed, had he
earlier disclosed this work and refrained from doing so during regular FRO working
hours there might have been no problem perceived by the Deputy Minister. Here,
however, he did none of that and sought again to minimize his culpability in the face of
considerable information to the contrary.
3. It was also clear from the evidence that Mr. Hussain did indeed share with an associate
private and confidential information he had ascertained from the MECA system. While
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he might not have been provided with particulars of that incident, it is surprising that,
having breached his Oath of Secrecy in such a significant way on this one occasion, that
he would have forgotten having done so. It was a major and significant violation of the
clients’ rights and his duties to his employer to maintain the integrity of the Family
Responsibility Office. That it was found to have occurred on only this one occasion
suggests that it was not a mere slip up that occurred during the ordinary course of his
duty. Rather, Mr. Hussain was not involved in his regular duties when the incident
occurred. Rather, he had gone out of his way to assist a non- FRO acquaintance by
providing him with internal, confidential information. Surely that is not something he
would easily forget. In any event, giving him the benefit of the doubt insofar as his
recollection is concerned, this was still a more than significant breach of his Oath of
Secrecy, the IT resources policy and common sense duty of confidentiality owed to FRO
clients. All of this again casts doubt on Mr. Hussain’s integrity and trustworthiness.
4. Finally, there was the reference to the two inappropriate videos which, as indicated
earlier, I found to be more than unacceptable. However, not having participated in the
circulation of those videos save to his own home, I do not consider their mere presence in
his e-mail account worthy of significant discipline. On the other hand, again Mr. Hussain
claimed in one of his meetings with management that he had never before seen these
videos. That denial is surprising in view of the fact that he later chose to forward them to
his home computer rather than deleting them entirely from his system. The latter would
have been the appropriate course of action given the government policies with respect to
such images. In any event, it is troubling that Mr. Hussain again denied any knowledge
of the existence of the images on his computer or their content.
5. In view of these findings which I have made, it is not surprising that Ms. Liston the
Director of the FRO office in question would have had significant misgivings about the
trustworthiness of Mr. Hussain and his ability to conduct himself with integrity in the
future. Aside from his conduct which I found to be significantly unacceptable, his
inability to take ownership of his wrongdoing is more than troubling. Ms. Liston was of
the view that the employment relationship could not be repaired. I too am of the view
that Mr. Hussain has totally undermined his own integrity not only by the nature of his
misconduct which in some measure was itself morally and also legally questionable, but
as importantly, his failure to take ownership of it. In the circumstances, his reinstatement
would put the office of Family Responsibility at significant risk.
6. While there is no reason to believe that Mr. Hussain did not otherwise conduct his regular
duties in a competent manner over the several years during which he worked for the FRO
office, there were no other mitigating factors in this case to rationalize the substitution of
a lesser penalty. Indeed, it was disappointing that Mr. Hussain retracted the admissions
he had made during his interview thereby putting the Employer in the position to prove
each and every incident. It was equally troubling that at the conclusion of the Employer’s
case he failed to participate further in these proceedings without providing satisfactory
information confirming his inability to do so. Sadly, perhaps by then, he had recognized
that his situation was beyond redemption.
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[39] My findings with regard to this matter including my support of the Employer’s decision to
terminate in the circumstances here are not without precedent before this Grievance
Settlement Board. Vice Chair Johnson in a decision between these same parties involving the
grievor Mr. Carletti which was released on November 25, 2011, was faced with the results of
an investigation which again flowed from the same blog which led to Mr. Hussain. That too
was a termination case and involved elements of wrongdoing some of which were similar to
those of Mr. Hussain. Furthermore, of significant concern in that matter was the
trustworthiness and/or integrity of the grievor. However, in that case Mr. Carletti did testify.
His evidence, however, was found to be more than unreliable. Considerations concerning his
conduct and his trustworthiness were not significantly different than those presently before
me. Vice Chair Johnson in the matter before her addressed her concerns respecting
reinstatement of the grievor in several paragraphs as follows:
[149] A critical factor to be considered when deciding if it is appropriate to overturn a
discharge and return an employee to the workplace is an assessment of the likelihood that the
individual might again engage in the conduct that led to the discharge. Another important
consideration in the case of Mr. Carletti is whether or not he can be trusted by his employer in the
future. In answering these questions, I have carefully reviewed the ever-shifting testimony of Mr.
Carletti. In the case before me, he was often not truthful and if he did admit engaging in
inappropriate conduct, it was only when he had been backed into a corner. He continually tried
to minimize any wrongdoing on his part and sought to place the blame elsewhere.
[40] In addition to those concerns, the grievor before her, Mr. Carletti, had shared confidential
information he was able to access through the MECA system from the Ministry of Transport
database and then disclosed that confidential information outside FRO. Although the facts
were somewhat different, the breach of confidentiality by Mr. Hussain was similar in its
impact upon the trust placed in him by the FRO office. At paragraph 150 Vice Chair Johnson
commented as follows:
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[150] The actions of Mr. Carletti in accessing the MTO database in the unacceptable manner
in which he did and then disclosing confidential information out of this restricted database could
potentially jeopardize a critical relationship based on trust between the Ministry he worked in and
the Ministry of Transportation. The ability to access the MTO database is an important
enforcement tool and his violation of the trust placed in him to use this tool appropriately is a
serious matter.”
[41] As indicated earlier, I am not satisfied that there is any basis upon which to consider that the
relationship of trust between Mr. Hussain and the Family Responsibility Office might be re-
established. Indeed, it is my view that his posture with respect to his conduct has put that
consideration beyond possibility. For the foregoing reasons the termination of Mr. Hussain is
upheld and the grievance dismissed.
[42] In closing, I would like to extend to counsel my appreciation for their perseverance as well as
for their thoughtful, thorough and professional presentations.
Dated at Toronto this 19th day of April 2013.
Joseph D. Carrier, Vice-Chair