HomeMy WebLinkAboutGray 19-12-12
In the matter of an Arbitration pursuant to the Labour Relations Act, 1995
Between:
Ontario Public Service Employees’ Union, Local 435
and
Corporation of the County of Lanark
Grievance of Nancy Gray
Andrew Tremayne, arbitrator
Appearances
Erin Moores for the union
D. Alan Whyte for the employer
Hearing dates: July 23; September 11, 12; October 1, 2, 7, 8; November 8,
2019
Award issued on December 12, 2019 at Ottawa, Ontario.
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1. The grievor’s employment with the County was terminated for intentionally
submitting false or misleading online benefit claims. The County’s benefit carrier first
noticed problems with the grievor’s claims in January 2019. The benefit carrier
investigated, and determined that the grievor had intentionally submitted online benefit
claims that contained false or misleading information. Her ability to submit online claims
was permanently revoked, and the employer, as the policyholder, was notified.
2. The employer conducted its own investigation into the grievor’s benefit claims
and reached the same conclusion. Her employment was terminated on May 2, 2019. The
union submitted a grievance on May 10, 2019 alleging that the employer had terminated
the grievor’s employment without just cause. The grievance was referred to arbitration
and I was appointed to hear the matter under section 49(4) of the Ontario Labour
Relations Act, 1999.
3. The employer argues that the grievor engaged in conduct which was fraudulent
and a breach of trust. The union argues that she never intended to be reimbursed for
expenses that she had not incurred, because she either believed that something had been
purchased for the amount claimed or that she was claiming the correct amount. With the
exception of one claim which the grievor improperly submitted based on a verbal
estimate, she was careless and made mistakes when filing her benefit claims. The union
also submits that the grievor has taken responsibility for her actions, and that when other
mitigating factors are considered, such as her past record and the economic impact of the
discharge, she should be reinstated.
4. The issue to be decided is whether the grievor’s conduct justified the termination
of her employment or whether there are mitigating factors that should lead me to exercise
my discretion under section 49(17) of the Act and substitute a lesser penalty.
Background
5. The grievor was hired by the County in 1991 as an Ontario Works Caseworker. In
2016 she became a Financial Review Caseworker, where she focused on more complex
Ontario Works cases, including calculating overpayments and reimbursements, as well as
referring cases for further investigation. She consistently received very good performance
appraisals and was considered an excellent employee. She held this position at the time
her employment was terminated.
6. The grievor has a medically diagnosed eye condition. When it flares up, her eyes
water and get very red. She is also very sensitive to light and sometimes wears sunglasses
indoors. She regularly sees an Ophthalmologist for treatment.
7. The County provides group benefits, including an Extended Health Care Plan and
Vision Care for its employees. The coverage for Vision Care is most relevant to this
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matter, and a maximum $400 benefit every two years can be claimed (referred to as a
“frequency limitation”). In 2017 Industrial Alliance (referred to from now on as “IA”)
became the County’s benefits carrier. IA had access to employees’ claims history with
the previous carrier.
8. Benefit claims can be submitted to IA online. An employee creates an account on
the IA “My Client Space” website. To submit a claim, the employee selects the name of
the insured (all family members who have coverage are listed), chooses the type of
expense (drugs, vision care, or dental care), then selects the service provider from a pre-
populated list based on the employee’s previous claims. The employee enters information
on the fees incurred, including the date of final payment and the specific type of service,
and all of the information is displayed on a final screen. The employee is asked to
confirm/authorize the claim (Yes/No), then click on a button to finally submit the claim.
IA pays approved claims by direct deposit to the employee’s bank account.
9. Employees can view their claims history and get access to information about their
maximum coverage and their coverage balance on the “My Client Space” website. They
can also send and receive secure messages to and from an IA helpdesk, and there is a toll-
free number that employees can call to get assistance with their claims. All messages are
kept, and all calls are recorded. At the hearing, copies of all of the messages and
professional transcripts of the calls were entered as exhibits.
10. In late December 2019 the grievor filed two online claims: a $330 claim for
glasses for her son, and a $243 claim for glasses for her husband. She indicated that the
service provider for both claims was Dr. David Hicks, an Optometrist in Smiths Falls.
This is where things started to unravel for the grievor.
11. On January 4, 2019 IA called Dr. Hicks’ office to ask about their return policy. IA
called because the grievor’s husband did not have $400 available for vision coverage. In
fact, because the grievor had filed a claim on his behalf in the amount of $465 on July 17,
2018 (and the maximum benefit of $400 had been paid), he had $0 available because of
the frequency limitation.
12. As IA’s call to Dr. Hicks office continued, several things emerged. According to
IA’s records, the grievor had filed two claims for glasses purchased there:
a. Glasses purchased by her husband on July 17, 2018 in the amount of $465;
b. Glasses purchased by her husband on February 1, 2016 in the amount of $316;
Dr. Hicks’ office had no record of the July 17, 2018 purchase; and the last record they
had for her husband was from February 1, 2016 for glasses for $216, not $316.
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13. At the time, the grievor did not know about this call or that the discrepancies
between her claims and Dr. Hicks’ records had been detected. However, on December
31, 2019 she checked her online account and noticed that her $330 claim for her son had
been paid but her $243 claim for her husband had not. She sent an email to IA asking
about this and was told that a manager would look into it.
14. On January 10, 2019 the grievor filed an online claim for $424 for glasses for
herself. She says that she submitted the claim based on an estimate from Dr. Hicks’
office. The grievor went on a 2-week vacation. While she was away, IA deposited $400
into her bank account, which was the most she could be reimbursed based on her claim.
15. On February 8, 2019 the grievor tried to login to her account on the IA website.
She wanted to submit a $40 claim for her husband for an eye examination, and the site
said that her access was blocked. The grievor sent an email to IA asking why, and she
was told that a manager had tried to reach her a few weeks ago, had left a message, and
would call her back.
16. At this point, it is helpful to track the evidence under three separate headings:
IA’s investigation, the employer’s investigation, and the grievor’s explanation.
Evidence
IA’s Investigation
17. When the call from IA to Dr. Hicks’ office on January 4, 2019 uncovered
problems with the grievor’s benefit claims, IA followed-up by looking for verification of
more of her claims going back several years. On January 15, 2019 IA sent an email to Dr.
Hicks’ office setting out a list of the grievor’s claims for herself, her husband, and her
son. IA asked Dr. Hicks’ office to compare the list with their records. Dr. Hicks’ office
had records of most of the claims, but they had no record of some of the claims and
others showed different (lower) amounts. The problematic claims are as follows:
Claimed from IA Dr. Hicks’ response
Feb. 1, 2016 – glasses (husband): $316 Feb. 1, 2016 – glasses (husband): $216
Jan. 17, 2017 – exam (husband) $85 Jan. 17, 2017 – exam (husband) $40
June 30, 2017 – glasses (son) $429 June 30, 2017 – no record
July 17, 2018 – glasses (husband) $465 July 17, 2018 – no record
Jan. 10, 2019 – glasses (grievor) $424 Jan. 10, 2019 – no record
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18. IA also contacted a physiotherapy clinic about 5 claims by the grievor for services
in December 2018 and January 2019. The clinic verified 4 of the claims; one claim was
for $95 when the clinic’s records showed that the correct amount was $85.
19. In addition, IA attempted to contact the grievor soon after she left on her 2-week
vacation. The transcript of the calls between the grievor and IA shows that IA called her
cell phone on January 15 and January 22, 2019. Both times IA left messages that they
were looking into her claims and asked the grievor to call back. IA called the grievor
again on February 12, 2019, this time at her work number. The y left another message
saying that they had been trying to reach her, acknowledged receipt of the emails that she
had sent before she left on vacation (see above), and asked her to call back.
20. The grievor finally spoke to IA on February 13, 2019 while she was at work. She
was told that IA had contacted Dr. Hicks’ office about her recent claim for $243 for her
husband’s glasses, and that Dr. Hicks’ office had no record of the grievor’s husband
purchasing glasses on July 17, 2018, when the grievor had claimed $465 for glasses for
him and $400 was paid. This was when the grievor became aware that Dr. Hicks’ office
had no record of that purchase. She was asked to provide a receipt in support of that
claim as well as a receipt for her own recent claim of $424.
21. The grievor replied that she kept a receipt file and other records at home and that
she would look for a receipt for her husband’s glasses. She specifically asked what would
happen if she could not find a receipt, and she was told that another record of the
transaction such as a credit card statement would do.
22. With respect to her own glasses purchase, she explained that she had planned to
purchase glasses for herself and wanted to be sure she had the money from IA before she
did so. She had received an estimate and had submitted her claim based on it, but then her
Ophthalmologist advised not to purchase glasses at that time. IA told the grievor that she
should not have submitted a claim for something that she had not purchased. There is a
discussion about how the grievor could reimburse the $400 that she had received for her
claim, but she was advised to not do so at that time.
23. Within 15 minutes of the end of the February 13, 2019 call, the grievor sent four
separate messages to IA through her secure online account in the space of about an hour.
She repeated her explanation for why she had submitted a claim for glasses for herself
that she had not purchased. She said that the glasses that her husband had purchased in
July 2018 were at home on the counter. She repeatedly expressed her frustration at IA,
specifically about the non-payment of her husband’s recent claim of $243 and at being
denied online access. She added that she would send IA a cheque for $400 to reimburse
the amount she had received for her own claim.
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24. She continued to call and send messages to IA. She frequently raised the subject
of the glasses she said her husband had purchased in July 2018. In a call with IA on
February 21, 2019 the grievor said “We have the glasses. Like they didn’t just appear out
of nowhere.” In one of several calls on March 1, 2019, she said: “I didn’t pull this figure
from nowhere. The glasses are sitting on the counter.” In a message that the grievor sent
to IA on March 8, 2019, she asks: “Do I owe IA $400 for [husband’s] glasses as can’t
find receipt, but I know I got them. I can send pic of them lol.”
25. On March 12, 2019 IA sent a letter to the grievor saying that they had contacted
certain service providers associated with her claims and identified discrepancies with her
submissions. The 6 problematic claims from Dr. Hicks’ office and the physiotherapy
clinic are listed. IA had determined that the grievor had intentionally submitted claims
that contained false or misleading information and her privilege to submit claims online
had been permanently revoked. IA also reserved the right to notify the employer, which
could result in further action including termination of the grievor’s benefit coverage. In
fact, IA had already told the employer about the outcome of its investigation.
26. After the February 13, 2019 phone call between IA and the grievor and before she
received the March 12, 2019 letter, the grievor called the IA helpdesk 4 times. She sent
many emails and many other secure messages to IA. The tone and content of many of
these communications will be addressed below, but at no time did she provide IA with
proof of her husband having purchased glasses on July 17, 2018.
The Employer’s Investigation
27. When the grievor discovered that her ability to submit claims online had been
blocked on February 8, 2019, she sent an email to Sarah Pitts, who works in the
employer’s HR/Benefits Department, cc’d to IA. The grievor expressed her frustration
with IA and complained that her recent claim for her husband’s new glasses had not been
paid and that nobody had contacted her about it. She also said that she needed to get
glasses for herself and that she had submitted a claim for $424 because she wanted the
money before she bought the glasses and she did not trust that IA would pay her. This is
the first time that anyone at the County was made aware of any problems with the
grievor’s benefit claims.
28. Ms Pitts replied to the grievor that she would forward her email to the County’s
benefits broker for answers, which she did. Ms Pitts and the broker had a brief exchange,
but it is clear that they both understood that when the grievor had disclosed that she had
submitted a claim for glasses before actually purchasing them, she had admitted in
writing to making a fraudulent claim. Ms Pitts quickly escalated this information within
the County to Sam Leroux, an HR Specialist, and to Kurt Greaves, the CAO.
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29. Ms Leroux testified at the hearing. After discussing the matter with Mr. Greaves
the following Monday, she was advised by the County’s benefit broker that IA was
investigating the matter, and that the County should not take any further steps at that
time. Ms Pitts contacted the grievor to follow up on her February 8, 2019 email
exchange, just to make sure that she did not think that the County was ignoring her, and
the grievor confirmed that she had heard from IA.
30. From the County’s perspective, there was no need for any further action at that
time. This changed on March 8, 2019, when the broker and Ms Leroux received a
message from IA, informing them that IA had determined that the grievor had
intentionally submitted claims that contained false or misleading information and that her
privilege to submit claims online had been permanently revoked. A meeting with the
grievor was arranged for March 13, 2019.
31. Ms Leroux met with the grievor as scheduled. Emily Hollington, the Director of
Social Services (the area in the County’s organizational structure where the Ontario
Works team is located), and Andrea Brown, the grievor’s union representative also
attended. There was some confusion at the meeting because the employer had not yet
received a copy of the detailed letter that IA had sent to the grievor on March 12, 2019.
At that time, the employer knew only that IA had determined that the grievor had
intentionally submitted claims that contained false or misleading information and that her
privilege to submit claims online had been permanently revoked. Ms Leroux told the
grievor that the employer would need to get a copy of the March 12, 2019 letter from IA
and would be investigating further. Notably, towards the end of the meeting, the grievor
asked if she could be terminated over this. Ms Leroux replied that in any investigation,
that was always a possibility.
32. A few weeks went by, because Ms Leroux needed to gather more information
from IA about their investigation, and because the grievor went on vacation again. Ms
Leroux and the grievor met on April 10, 2019. Ms Hollington and Ms Brown were
present. The grievor was given a letter signed by Ms Hollington formally notifying her
that the employer (specifically, Ms Leroux) would be conducting an investigation
regarding the concerns brought forward by IA. The grievor was asked to give her consent
so that Ms Leroux could interview Dr. Hicks, which she did a few days later.
33. According to Ms Leroux, the grievor floated a few “conspiracy theories” at this
time: IA was biased against her because she had successfully appealed several claims that
had been denied; she had also used the benefits a great deal. The grievor said that she had
not realized that submitting a claim based on an estimate was such a big deal and that she
would not intentionally file misleading claims.
34. Ms Leroux met with Barb Hicks, Dr. Hicks’ wife and office manager. They
reviewed every problematic transaction that IA had identified. Ms Leroux quickly learned
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that every transaction was recorded in several places. For example, an order for glasses is
recorded in the client’s file and in the office’s daily ledger. There is a separate record
when the order is placed with the manufacturer, and deliveries of all orders are also
tracked. The bottom line is that any information missing from a client’s file would also be
recorded several other places. Ms Leroux concluded that there had been no mistakes in
the record-keeping at Dr. Hicks’ office. Essentially, she discovered no new information
and thus confirmed IA’s determination.
35. With respect to the grievor’s claim for $424 that she said she submitted based on
an estimate, Ms Hicks explained to Ms Leroux that if a client asks for an estimate, it is
usually written down for the client and recorded in the client’s file for future reference.
36. A meeting with the grievor was arranged for April 26, 2019, and Ms Leroux met
with her and Ms Brown as scheduled. Ms Leroux reviewed each of the 5 problematic
claims from Dr. Hicks’ office. With respect to the 3 claims where the grievor claimed a
higher amount than was shown on the receipt, her explanation was the following: if it was
a paper claim, her writing is messy; if it was an online claim, she mistyped; her eye
condition makes it difficult for her to see sometimes; she files her claims at work, so she
is multi-tasking and made mistakes when entering the numbers. The grievor said she did
not notice the extra amounts being deposited into her bank account because she does not
track things that closely, and that she would have only checked to see if she had been
paid, not the amount.
37. Ms Leroux then asked the grievor to explain the July 17, 2018 claim for $465 for
glasses for her husband, for which Dr. Hicks’ office had no record. The grievor’s
explanation was that Dr. Hicks’ office made a mistake. She added that it was the summer
and there were students working in the office, and that the office is very disorganized.
She also insisted that her husband got the glasses and that they were at home on the
counter. The grievor’s explanation for her June 30, 2017 claim for $429 for glasses for
her son was similar, although she added that she did not have the receipt because she only
needed to keep them for 1 year. Ms Leroux explained that she had visited Dr. Hicks’
office, reviewed their records, and verified their process.
38. With respect to her own Jan. 10, 2019 claim for $424 for glasses for herself that
she submitted based on an estimate, the grievor took responsibility and apologized, and
she explained again why she had submitted the claim. She added that she did not think it
was a big deal, that it was never her intent to not purchase the glasses when she returned
from her vacation, and that she knows she made a mistake. She added that when she
returned from her trip, she saw her Ophthalmologist, and he advised her that it was not a
good time to get glasses. She thought that she had called IA when she decided to not get
the glasses although she was not sure, but she had told Ms Pitts right away as soon as she
decided not to get the glasses.
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39. At the end of the meeting, Ms Leroux asked the grievor if she had anything to
add. Ms Brown and the grievor asked for a brief caucus. When they returned, the grievor
said that she makes careless mistakes due to her eye issues and ADHD. She accepted
responsibility for submitting the estimate and said that she would never do it again. As
for the missing records, she believed it was an error by Dr. Hicks’ office, and she had no
other explanation. She said that the glasses were on her counter at home, and that she
would not submit a claim for something that did not exist. [Note: the argument that the
grievor made mistakes in her benefit claims because of her eye condition or because of
ADHD was not pursued at the hearing]. The meeting ended, and the parties reconvened
briefly a few hours later to review and sign off on the typed notes that had been prepared
by an Administrative Assistant from HR who had attended the meeting.
40. Ms Leroux reviewed the grievor’s performance appraisals to see if there was any
evidence that she was prone to making mistakes in her work, but there was none. She
spoke to Ms Hollington, who had been the manager of the Ontario Works team and the
grievor’s supervisor from January 2017 to February 2018 before she became the Director
of Social Services. Ms. Hollington told her that the grievor made no more mistakes than
anyone else, and that she was generally impressed with her performance and attention to
detail. As a result, Ms. Leroux disregarded the grievor’s suggestion that she was prone to
making mistakes. Ms Leroux also reviewed the grievor’s emails and secure messages to
and from IA representatives over the previous weeks. She summarized and organized
them into a spreadsheet. Then she prepared a report based on the results of her
investigation.
41. Ms Leroux’s May 2, 2019 report reviews each of the problematic claims that had
first been identified by IA. The grievor’s explanation for each one is set out in detail. Ms
Leroux also describes the results of her visit to Dr. Hicks’ office. She includes a detailed
review of the grievor’s emails to the employer and to IA from February 8, 2019 (when
the grievor found out that her online access had been blocked) until the end of the
investigation. Documents that the employer received from the grievor during the
investigation are reviewed. [These were produced at the hearing, and they are an
unorganized assortment of duplicate emails and copies of some bank statements that
show various deposits to the grievor’s account from IA. There is no evidence that Ms
Leroux received any records or receipts for the problematic transactions or any other
useful information from the grievor.]
42. Ms Leroux’s key findings include the following:
a. [the grievor] does not have any receipts to prove she purchased the glasses of July
17, 2018 or June 30, 2017 despite the fact that one pair was purchased within the
past year. For any claims submitted there is an obligation to have proof of
purchase in the event you are audited;
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b. [the grievor] has no bank transactions or credit cards statements to prove she
made the purchases. [. . .] For the purchases we were able to confirm, they were
made on credit card. If she used credit cards to make the purchases for the glasses,
she would have records [and be able to provide proof of purchase];
c. after [the grievor] is blocked from online access she admitted to submitting an
expense before it actually was incurred. To rectify the situation [the grievor]
wanted to repay the $400 back to IA, she sent between Feb 8 and March 15
approximately 13-15 emails/messages to IA looking to have the matter resolved,
tracking her $400 cheque and wondering when it is going to be cashed. In
reviewing her claims [the grievor] appears diligent with tracking all submission
and claims. Submitting a claim before an expense is in contravention of IA policy;
d. [the grievor’s] information is inconsistent on a number of occasions. She indicates
that she informed the Employer right after her appointment where the specialist
says she should not get the glasses. In fact, there was 10 days in between the two
events;
e. [the grievor] tells the employer about the Jan 10, 2019 purchase only after she is
blocked from the online website;
f. [the grievor] has not provided a substantive explanation for any of the transactions
in question. I do not give her credit for her desire to return the $400 to IA as she
only expressed that desire after her online access was cut off by IA.
43. In summary, Ms Leroux found sufficient evidence that the grievor intentionally
provided false or misleading information to the County's benefit provider. She engaged in
conduct which was fraudulent and a breach of trust with the County, and she used deceit
to gain a pecuniary benefit for herself and other members of her family, both of which are
contrary to the County Code of Conduct. Ms Leroux sent her report to Ms Hollington and
Mr. Greaves, the CAO.
44. Ms Hollington gave evidence at the hearing. She described the grievor as a good
employee who did her job well and was great to have around. She was detail-oriented, a
self-starter, and very organized. She was also a long-term employee, and they had a good
working relationship. Ms Hollington testified that she had decided to not suspend the
grievor pending the outcome of the investigation because she thought the grievor would
be able to provide some explanation for the problematic claims that IA had identified. Ms
Hollington was surprised at the findings in Ms Leroux’s report. The grievor had filed
multiple fraudulent benefit claims and never provided a satisfactory explanation for what
had happened. She never took ownership and was not remorseful.
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45. Ms Hollington discussed the report with Mr. Greaves. They considered the
grievor’s record and long service but decided to terminate the grievor’s employment
because their trust in the grievor was broken to the point that it could not be restored.
46. Ms Hollington says that she must be able to trust the grievor. All Ontario Works
staff have access to large amounts of money which they are able to issue to clients. As a
Financial Review specialist, the grievor has a high level of security clearance and access
to confidential financial information. Ontario Works clients are vulnerable people, and
she needs to have complete trust in the staff who work with them.
47. The employer called two other witnesses to testify about the grievor’s duties and
responsibilities and her performance. Lisa Michaud was the grievor’s supervisor from
April 2018 to January 2019, at which time she became the manager of the Ontario Works
program for the County. Kaitlyn Murray was the grievor’s supervisor after January 2019.
Both witnesses described the grievor as a high performer, a senior employee with
extensive knowledge of policies who is very detail-oriented, and someone who is very
reliable and organized. The grievor would typically spend 1 or 2 days each week away
from the County’s Perth offices, either working in Smiths Falls or Carleton Place, usually
to meet clients, and she worked independently and did not need to be micromanaged.
48. Ms Murray noted that the grievor had created her own spreadsheet that she used
to track the files she was working on. She always kept it up to date, which made it easy to
carry on when she was away. Ms Michaud highlighted that one of the grievor’s main
responsibilities is to conduct 24 month reviews of OW clients. This involves reviewing
and reconciling a great deal of financial and other information, including reports from
Service Canada and the Province, and calculating whether an overpayment has been
made. If the grievor finds that a client has an overpayment of more than $5k (or a lower
amount if it looks like the overpayment resulted from deliberate action by the client) the
grievor is supposed to refer the file for further investigation.
49. Both witnesses agreed that they had not done random checks of the grievor’s
work and that they did not always see the grievor on a daily basis. They conceded that the
grievor could have made more mistakes in her work than they were aware of.
50. Ms Brown, the grievor’s union representative, is an ERO with the Ontario Works
team and she sometimes deals with work the grievor has done. She has seen mistakes in
the grievor’s work, and she usually tells the grievor directly about this and does not
involve a supervisor or manager.
The Grievor’s Explanation
51. The grievor testified at the hearing. In December 2018 she, her husband, and her
son all wanted to get new glasses. She sent an email to IA to make sure that the benefit
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coverage was there. In that December 27, 2018 email, she specifically asked if her son
was eligible. She was concerned that her online account also showed that her husband
was eligible but asked how that could be when he had purchased glasses in July 2018.
The IA representative confirmed that her son had $400 in coverage available. In
retrospect, says the grievor, she assumed that the representative was also confirming that
her husband had $400 available in coverage, but reading the email more carefully, this
was not the case.
52. Her husband and son purchased glasses on December 28, 2018 and she submitted
their claims. Her claim for her son was paid quickly but her claim for her husband was
not. She sent another email to her contact at IA asking why this was the case. The grievor
mentioned in her email that her husband’s glasses were a second pair for a different
purpose than his others. There was a short exchange about the reason for the second pair,
and IA said that a manager would contact her later with an update.
53. The grievor had also decided to get glasses for herself. Her eye condition meant
that she had been wearing sunglasses and using 2 different pairs of glasses at work, and
she wanted to get tinted glasses that could be used for reading and at her computer. She
got an estimate from Dr. Hicks on either December 17, 2018 or January 10, 2019. She
went to the front desk and asked how much it would cost to get tinted glasses with a
reading component and that can be used at a computer. The person in Dr. Hicks’ office
pulled her file and gave her a figure, then told her to add the cost of the frames. The
grievor looked at frames, chose one, and noted the cost. She does not recall if she wrote
the total down herself or if she went back to the counter and the person did the
calculation, but she left Dr. Hicks’ office knowing that the cost was $424. The grievor is
not sure who she spoke to at Dr. Hicks’ office; she did not ask, and the person did not
give her a business card.
54. The grievor returned to work on January 8, 2019 after the holidays. A few days
later she went on a cruise, but before she left, she filed a $424 claim for glasses for
herself based on the estimate. She did not trust that IA would pay. She wanted to have the
money before she actually purchased the glasses rather than buy them and have IA not
pay. She had had problems before with IA not paying. The grievor conceded that when
IA paid, they paid quickly, but when IA had disputed or denied her claims she had to
fight to get reimbursed. At the hearing, minutes of labour management committee
meetings where members of the grievor’s bargaining unit reported numerous problems
with IA were filed as exhibits. An April 2018 email from the grievor to a union
representative in which the grievor describes her own experience with IA as poor was
also filed.
55. They were at sea for 4 days, and when she returned to port, she checked her
messages, either on January 17 or 18. There was a message, but it was garbled, and she
could not understand it even when she replayed it. She thought she heard something
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about a “review” although the transcript, which was only available later, said nothing
about that. At the hearing, the grievor said “perhaps I assumed it was about [her
husband’s] glasses”. The cruise ship left port and when they returned, the message was
no longer there. The grievor was not sure how long her voice mails are saved, although
she thinks it is 5 days, and says that she should have checked.
56. She did not try to call IA while she was on vacation because they usually keep
you on hold for a long time; she also likes to have the relevant documents in front of her
when she is dealing with them, and she did not. Also, she did not want the stress of
dealing with IA, and although she usually does not put things off, she did that time.
57. She returned to work on January 29, 2019. She saw her Ophthalmologist, and her
eyes were not in good shape. She thinks she must have told him that she was planning to
get tinted prescription glasses, and he must have advised against it, because she came
away from her appointment thinking that it was not a good time to get new glasses. She
was busy at work because she had been away for several weeks. She probably stopped
thinking about the glasses, and she does not know if at that point she decided not to get
them, because she cannot recall her thought process at the time, and something might
have distracted her.
58. The grievor made copious notes about the course of her treatment for her eye
condition, which she usually emailed to herself after her visits to her Ophthalmologist.
Copies of these documents for the relevant time period were produced at the hearing. The
grievor conceded that there was no note or record about her Ophthalmologist advising
against purchasing the glasses, although she said that she did not make notes about
everything they discussed.
59. On February 8, 2019 she discovered that her access to IA’s online claim system
had been blocked. The grievor testified that she thought she had called IA before
February 8, 2019 to tell them that she had decided not the get the tinted glasses. As a
result, she says that her first thought when she discovered that her access had been
blocked was that it was because she had submitted a claim based on an estimate. She sent
an email to her contact at IA and received a reply right away. The reply also states that a
manager had called the grievor on January 22, 2019 and left a message. The grievor was
confused because she had not received a message on that date. Having reviewed the
transcripts, the grievor says that she now knows that she did not contact IA between
December 31, 2018 and February 8, 2019. The transcripts also show that IA had left
messages for her on January 15 and 22, 2019.
60. A few minutes later, the grievor sent a message to Ms Pitts, copied to her contact
at IA. The grievor was frustrated with IA because her access had been blocked, and she
was waiting for someone from IA to get back to her about her unpaid claim for $243 for
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her husband’s glasses. She also told Ms Pitts and IA that she had submitted a claim for
$424 glasses for herself based on an estimate but had then decided not to get them.
61. The grievor testified that when she sent the email to Ms Pitts, she did not think it
was that serious that she had submitted a claim based on an estimate. She was going to
get the glasses, and it was stupid and impulsive to submit a claim, but she was frustrated
with IA. She did not realize that this was fraud until the IA report said that she had
admitted to submitting a fraudulent claim. She should have called IA as soon as she
decided to not get the glasses, the grievor says, but at that time, after she had filed the
claim and been paid $400, she needed to know how to repay it. At the same time, IA
owed her $243 for her husband’s glasses. She called and sent emails and secure messages
to IA to figure out how to do this.
62. On February 13, 2019 the grievor spoke to a manager at IA. She thought there
were only 2 issues: her husband’s claim for $243 had not been paid, and she needed to
repay the $400. This call was the first time she learned that Dr. Hicks’ office had no
record of the July 2018 purchase of her husband’s glasses. The grievor explained (again)
why she had submitted her claim based on the estimate and decided not to purchase the
glasses. The grievor was told that if she wanted to know if a purchase was eligible for
benefit coverage, she could have sent a written estimate to IA and asked if it would be
covered. The transcript shows that the grievor replied: “I know. I know and I have. If you
look at my file, I did that with my orthotics. I sent it in for a determination. I did it with
my dental. It’s just this time we were in a rush.”
63. She understood that she needed to find a receipt for the July 2018 purchase. She
would have called Dr. Hicks’ office and also would have asked when she was there for a
previously scheduled appointment around that time. She was not worried, the grievor
testified, because she was certain that her husband had purchased the glasses and that
they were at home. The grievor wanted to repay the $400 because she did not like to owe
money even though the IA manager had advised her to wait. She sent IA a cheque for that
amount but when many days went by and it had not been cashed, she became concerned
because she was not sure if IA had received it. She followed up on this in her emails and
calls to IA. She was also nervous about submitting a claim for $40 for a recent eye exam
through the secure messaging site, and she also raised this in her communications with
IA. The grievor testified that she was trying to work with IA to make sure her cheque was
cashed, but that she was frustrated and angry with them; some of her frustration was
because she thought they were not getting back to her, but after reviewing the transcripts,
she sees that they were, so she realizes now that her frustration was not always
appropriate.
64. She checked her files and credit card statements for a record of her husband’s
glasses. She asked him which credit card he had used when he purchased them, and she
checked those but still found no record of the purchase. The grievor kept spreadsheets
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and files of her family’s medical and other expenses so that these could be claimed for
income tax purposes, and copies of these documents for the relevant time period were
produced at the hearing. The grievor conceded that there was no note or record in these
documents that supported her position with respect to the problematic benefit claims.
65. The grievor says that by March 1, 2019 she had looked at most of her credit card
records and searched most of the places where the receipt would have been kept. Her
husband confirmed that he had purchased the glasses, but he did not like being
interrogated about it. She was usually exhausted when she came home from work, so she
was searching a little bit at a time; however, it was not until she received the March 12,
2019 letter from IA that she really got going on the search, she testified.
66. The March 12, 2029 letter from IA was also the first time the grievor learned that
there were problems with some of her other benefit claims. As she read the letter, she
realized that she might have made some mistakes on some of the claims. She knew that
she would never submit a claim for something that she did not believe existed, so either
Dr. Hicks’ office must be missing records or must have made mistakes, or she made
mistakes when she entered the claims. She did not think that she had been caught
inflating the amounts, because there was no reason for her to have done that. She was
sure that her husband and son had purchased glasses, because she would not have
submitted the claims if they had not. The grievor testified that she was convinced that Dr.
Hicks’ office was responsible for the missing receipts until April 26, 2019, when she met
with Ms Leroux, who explained that it was really not possible for that to have happened.
67. The grievor called her husband, read him the letter from IA, and asked him about
the June 30, 2017 claim for $429 for glasses for their son, which she had just learned was
a problem. Her husband could not remember it. She called Dr. Hicks’ office, asked about
that purchase, and if it was possible that they had made a mistake. She was told that
mistakes are always possible.
68. After the grievor made these calls, she wrote a lengthy email to IA which she also
forwarded to Ms Leroux and Ms Hollington. In the email, she expressed surprise at the
conclusion that she intentionally submitted claims that contain false or misleading
information. She listed her many complaints about the service she had received from IA
and then responded to each problematic claim:
a. With respect to her own claim for $424: “I did not intentionally submit a false
claim. I submitted a claim for glasses I was going to get and immediately repaid
once I realized I was not going to get the glasses”.
b. With respect to the July 17, 2018 claim for $465 for glasses for her husband:
“since I found out that Hick's [sic] office has no record, I have been asking IA
since Feb 13 2019 repeatedly what they want me to do - do they want to give me
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more time to find the receipt or do they want me to pay $400 - $243? No one got
back to me. If I had wanted to fraud IA out of $400, why would I call attention to
it by then following up with them when they didn't pay for [husband’s] December
$243 glasses?”
c. With respect to the June 30, 2017 claim for $429 for glasses for their son: “neither
I nor [husband] WOULD NOT have submitted a claim [sic] for something we
didn't get. My only explanation is that Dr Hick's office has filed [son’s] glasses
under the wrong file.”
d. For the claims with the inflated numbers, the grievor said that her handwriting is
very poor, that she files claims when she is multi-tasking, and that she has
ongoing eye issues.
Towards the end of her lengthy email, the grievor said the following:
Bottom line is that I HAVE NOT intentionally submitted claims that contain
false or misleading information. I would not do that. The mistakes I made
are: 1. Submitting my glasses claim based on estimate, before I bought them.
I apologize for that however as I have indicated, my trust in IA has eroded
and I didn't want to be out more money. I wanted to be sure that I had the
money before I got the glasses. 2. Possibly misfiling in $85 instead of $40 due
to carelessness while multi-tasking and 3. Having a 2 mistaken for a 3 for the
$316 glasses claim. 4. Misreading $85 for $95 due to eye issues.
The only logical explanation to me for the missing glasses records for
[husband] and for [son] is that Dr. Hicks’ office has put the two pairs of
glasses documentation in someone else's file. I have a reason for this belief
but I don't wish to put it in an email. However if you wish to call me at
[redacted] l would be happy to discuss.
69. The grievor met with Ms Leroux and Ms Hollington on March 13, 2019, and Ms
Brown was present. The meeting was very informal and there was some confusion
because the employer did not know all the details of the March 12, 2019 letter from IA.
She understood that Ms Leroux was going to review things, and she was worried because
IA had concluded that what she had done was intentional. She may have asked if she
could be fired, but it was an off-the-cuff question. She may have been concerned because
of an experience she had in 2013 when she was disciplined for something. The discipline
was successfully grieved but it was a “horrible process”. She was also aware that another
County employee had recently been fired for dishonesty.
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70. The grievor went on vacation in late March, and she met with Ms Leroux on April
10, 2019 after she returned. She was given a letter that said there would be a formal
investigation and she gave her consent for Ms Leroux to speak to Dr. Hicks. She testified
that she thought that Ms Leroux would be able to confirm that Dr. Hicks’ office had
made mistakes. The grievor gave Ms Leroux some documents that she thought would be
helpful. She returned to work and continued with her regular duties. She was still certain
that her husband and son had purchased the glasses.
71. In her communications with IA, she focused her efforts on repaying the amounts
that she owed, because she does not like owing money. She would have continued
looking through all of the files and records that she had access to, such as: credit cards,
including ones that they had cancelled; and bank accounts, including old ones. She
continued to ask her husband about his glasses, but he was getting tired of her questions.
72. The grievor met with Ms Leroux on April 26, 2019. When she found out that
there was really no way that Dr. Hicks’ office could have made a mistake, she finally
realized that there had been no purchases made there on the dates claimed. But she did
not have any other explanation. Towards the end of the meeting, she and Ms Brown left
the room to caucus. When they returned, the grievor said that she is not good at
multitasking and makes careless mistakes due to her eye issues and ADHD. She accepted
responsibility for submitting the estimate and said that she would never do it again. As
for the missing records, she said that she believed it was an error by Dr. Hicks’ office,
and she had no other explanation. She said that the glasses were on her counter at home,
and that she would not submit a claim for something that did not exist. She reiterated that
she did not intentionally do anything she should not have.
73. Unbeknownst to Ms Brown, the grievor was secretly recording the meeting,
including their brief caucus. Excerpts were played at the hearing. It is clear from the
recording that the grievor suspected sometime in March 2019 that her husband had
received an estimate for new glasses but had not purchased them. On the recording, she
and Ms Brown discuss this and then decide to not disclose it when they return to the
meeting. Ms Brown testified that she advised her not to do so because the grievor was not
certain that the estimate explanation was true either. She did however suggest that the
grievor raise her eye issues and ADHD.
74. After the meeting, the grievor finally understood that Dr. Hicks’ office had not
made a mistake. She told her husband what she had learned about Dr. Hicks’ office and
“interrogated” him, and she testified that sometime in late April he became less sure
about where he had purchased the glasses. A friend advised her that changing her story
would not be a good idea. She did not think she would be fired and she thought she
would get a chance to apologize, and she was shocked when her employment was
terminated on May 2, 2019. The grievor says that she has learned to slow down, not to
multitask, and that she would never submit any claims again based on an estimate.
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75. The grievor testified about her current understanding of how her June 30, 2017
claim for $429 for glasses for their son and her July 17, 2018 claim for $465 for glasses
for her husband came about. She thinks that her husband may have asked Dr. Hicks’
office for an estimate and told her the amount. She assumed he had bought them and she
claimed it. However he did not get the glasses from Dr. Hicks’ office but bought a pair
from the pharmacy instead. Her son was home from University in June of 2017, so he
might have done the same thing, but in any event, he did not get glasses at that time. The
grievor admits that she is “just hypothesizing” about these explanations.
76. The incorrect amounts for the other claims were typos, because she now knows
that they were all filed online, so it could not have been her handwriting. For one claim,
she was thinking about a number, (the amount that the test usually costs) and entered that,
but the test actually cost less. Her “thoughts and surmising” have changed about how it
happened, but she never intentionally submitted false or misleading claims, except for her
estimate, the grievor testified.
77. The grievor’s husband testified at the hearing. For a long time, he believed that he
had bought new glasses at Dr. Hicks’ office in July 2018. He continued to think this after
his wife received the March 12, 2019 letter from IA, which said that Dr. Hicks’ office
had no record of the purchase, because he thought it was an error with their filing. By late
April or early May he was absolutely certain that he had not purchased the glasses. This
was after he and his wife had searched all of their records and could not find any proof of
the purchase. He also learned from his wife that there could not have been an error at Dr.
Hicks’ office because of their record-keeping methods. He now recalls (in more detail
than is set out here) that he got a verbal estimate for a pair of glasses from someone in Dr.
Hicks’ office and told his wife. He was not aware at that time that she had filed a claim
for the amount.
78. At the hearing, the grievor’s husband was told that there was a recording of an
April 26, 2019 conversation between his wife and Ms Brown, in which is wife is heard
saying that she knew sometime in March that he had received an estimate for new glasses
but had not purchased them. He answered that this would not surprise him.
The Parties’ Submissions
79. The evidence that the grievor engaged in benefits fraud in 6 transactions over a
period of 3 years is overwhelming, argues the employer. IA’s group benefit program for
which claims can be filed online operates on an honour system. The insurer trusts that the
employee who submits the claim has actually incurred the expense, and there is no
evidence for any expense having been incurred for 3 claims that the grievor submitted:
her June 30, 2017 claim for $429 for glasses for her son; her July 17, 2018 claim for $465
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for glasses for her husband; and her January 10, 2019 claim for $424 for glasses for
herself.
80. There is no explanation for the first claim and no evidence of any purchase. The
grievor’s explanation for the second claim has changed and her most recent story is
simply not credible. She insisted for months that her husband got the glasses and that they
were at home on the counter, but she never produced them or took them to Dr. Hicks’
office, which might have helped explain where and when they were purchased. She
maintained for months that her husband was “no help” but then he suddenly recalled in
detail getting an estimate but not purchasing them. Even this possible explanation was
withheld from the employer during its investigation and not offered until long after the
decision was made to terminate her employment. None of this is credible, argues the
employer.
81. As to her own claim, the grievor insisted that she intended to purchase the glasses
but decided not to when her Ophthalmologist advised against it. The grievor, who took
copious notes about her course of treatment for her eye problems, has no record of this
important advice. She insisted for months that she had told IA as soon as she decided to
not get the glasses, but the records are clear: she saw her Ophthalmologist on January 29,
2019, and she did not tell IA until February 8, 2019 after she discovered that her online
access had been blocked. Even if her explanation were true, it would not make any
difference, because the grievor knew that submitting claims based on an estimate was
wrong. But even the explanation itself is simply not credible, argues the employer.
82. On that point, for months the grievor tried to get credit for having alerted IA on
her own that she had submitted her January 10, 2019 claim based on an estimate. She did
not “fess up” argues the employer – IA caught her and blocked her access, and then she
told them what she had done.
83. The grievor has maintained that 3 other improper claims were mistakes. IA
reviewed all of her claims for 3 years, and there were no errors in the benefit carrier’s
favour. The grievor is not careless – her performance appraisals make no mention of this,
and the evidence of her supervisors and managers is equally clear. She is detail-oriented,
enjoys doing the calculations that are necessary for complex financial analyses, and is
well-organized. On the grievor’s own evidence, she manages her family’s finances, keeps
the family’s financial records and maintains special spreadsheets, and made detailed
notes about her visits to her Ophthalmologist and the course of treatment for her eye
problems. Her explanation for the 3 instances when she claimed amounts that were higher
than the actual expenses is simply not credible, submits the employer.
84. The grievor broke the employer’s trust and has not restored it. In some cases of
serious misconduct where dishonestly is involved, remorse and an apology can save the
working relationship, but the grievor has never owned up to her behavior and has never
20
apologized. The only two mitigating factors could possibly be her discipline-free work
record and her length of service. She has engaged in serious misconduct that overwhelms
these two factors, argues the employer.
85. The union argues that the grievor has admitted that filing her claim on January 10,
2019 was dishonest and she has apologized. For the other 5 claims, she never had any
intention of getting money for something that she did not purchase: she either believed
that something had been purchased for the amount claimed or believed that she was
entering the correct amount. She had no intent to deceive or commit fraud. There was one
act of dishonesty and the rest were acts of carelessness or inattention. The grievor knows
that she is subject to discipline for this, but termination of her employment is not
justified.
86. At the end of December 2018, the grievor checked her benefit coverage. She
asked IA about her son’s eligibility, and when she saw that her online account also
showed that her husband was eligible, she asked how that could be when she had filed a
claim for him in July 2018. If that claim was fraudulent, the grievor would not have
brought it to IA’s attention.
87. With respect to her own claim, the grievor honestly believed that she had called
IA between January 29, 2019 and February 8, 2019. She did not have to alert the
employer on February 8, 2019 that she had submitted a claim for $424 glasses for herself
based on an estimate but had then decided not to get them. She could have tried to deal
with IA on her own. Instead, she told Ms Pitts the details about something she was not
supposed to do – file a claim based on an estimate. She came forward, which speaks to
her credibility. After that, the grievor repeatedly offered to pay back the $400. She was
taking the initiative by calling and sending emails to IA, trying to resolve the issues. This
is not the behavior of someone who is trying to cover up what she has done.
88. The March 12, 2019 letter from IA is the first time that the grievor became aware
of most of the problematic claims. Until then, she had no opportunity to respond to
allegations about them. She called Dr. Hicks’ office and was told that mistakes are
always possible. It was not dishonest of her to rely on this.
89. The grievor took responsibility for her own January 10, 2019 claim in her March
12, 2019 email, which she also forwarded to the employer. By then she had also sent a
cheque to IA for the $400. She also took responsibility at that time for two of the claims
where she had submitted incorrect amounts. For one, she explained that she was thinking
about a higher number, which was the usual amount for an eye exam, when she filed the
claim, and that she was guilty of multitasking. For the other, she admitted that she had
made a mistake because of her eye issues. In the April 26, 2019 meeting the grievor took
responsibility for the other mistaken amount. She maintained her explanation for the June
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30, 2017 claim for $429 for glasses for her son and the July 17, 2018 claim for $465 for
glasses for her husband, but she has now taken responsibility for those also.
90. The grievor’s frustration with IA was legitimate. While she understands that this
is no excuse for submitting a claim based on an estimate, it is evidence of her credibility.
Her frustration with her eye condition was also legitimate – she had a real reason to want
tinted glasses, and she has maintained that explanation all along. She was frustrated with
IA’s history of not paying, and this is corroborated by other evidence, as are many other
problems with IA’s customer service. Her explanation for filing her claim is credible,
even if it does not amount to a reasonable excuse. She appreciates that what she did was
wrong, the claims were impulsive and not a pre-planned scheme, she paid back the $400
that she received, and on February 8, 2019, she told the employer what she had done.
91. Most important is that the grievor is a long- service employee with no record of
discipline. She was a good performer and there is no basis for the employer to believe
that she cannot be trusted to do her work. She testified about how she would not make
similar mistakes in the future. Finally, the impact of the discharge on her life is
enormous. She was not far from retirement, she has spent many years with the same
employer, and the prospects of her finding a new career at this stage are low.
Analysis and Findings
92. This is a breach of trust case. It is well established that misconduct with respect to
benefits for which an employer pays or for which it pays the premiums is considered to
be misconduct against the employer. The grievor’s own evidence about her January 10,
2019 claim for $424 for glasses for herself is clear: she submitted it based on a verbal
estimate. The grievor knew that this was wrong, but she did it anyway. Her explanation is
that she did not trust that IA would pay, because she had had problems before with IA not
paying. She wanted to have the money before she actually purchased the glasses rather
than buy them and have IA not pay. Assuming without finding that she had had problems
with IA not paying, this explanation still does not bear scrutiny.
93. When the grievor spoke to the IA representative on February 8, 2019, she was
told that if she wanted to know if a purchase was eligible for benefit coverage, she could
have sent a written estimate to IA and asked if it would be covered. The transcript shows
that the grievor replied: "I know. I know and I have. If you look at my file, I did that with
my orthotics. I sent it in for a determination. I did it with my dental. It's just this time we
were in a rush." If the grievor was genuinely concerned about whether IA would pay, she
could have followed this procedure. She chose not to. As a result, this explanation does
not assist her, and it does not diminish her responsibility.
94. The grievor also says that she decided not to get the glasses because her
Ophthalmologist advised against it. I have several problems with this explanation.
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95. First, there is no objective evidence before me that her Ophthalmologist ever gave
her this advice. She made copious notes after her appointments and kept records of her
course of treatment. She testified that she was particularly frustrated with the condition of
her eyes around this time. It is very likely that if she had received this advice, she would
have made some kind of note about it.
96. Second, when she submitted her claim on January 10, 2019, she knew that she
was wrong for doing so. IA deposited $400 into her bank account a few days later.
Assuming without finding that her Ophthalmologist actually gave her the advice which
caused her to reconsider making the actual purchase, the grievor’s evidence is that he did
so at her first appointment following her return from vacation, which was on January 29,
2019. By that time, the clock was already ticking on the claim and on the money that she
had been paid. But the grievor, who claims to not like owing people money, said nothing
until February 8, 2019, when she sent an email to Ms Pitts, copied to IA, after she
discovered that her ability to file claims online had been blocked. If advice from her
Ophthalmologist was the reason that she decided to not follow through with the purchase,
then the length of time that it took her to mention this advice to anyone calls into serious
doubt whether she ever intended to tell anyone about it.
97. Moreover, the circumstances in which the grievor eventually disclosed this
supposed advice do not assist her. On December 28, 2018 the grievor submitted a claim
for $243 for glasses for her husband, mistakenly believing that he was eligible for $400
of coverage. He was not, and IA called Dr. Hicks’ office on January 4, 2019 to find out
about their return policy. The information that IA received on this call triggered their
investigation into the grievor’s claims. On February 8, 2019 the grievor discovered that
her online access to file claims on the IA website had been blocked. She expressed her
frustration about this, complaining that her husband's claim had not been paid and that
nobody had contacted her about it. She added that she needed to get glasses for herself
and had submitted a claim for $424 because she wanted the money before she bought the
glasses and she did not trust that IA would pay her.
98. The grievor testified that she thought she had called IA before February 8, 2019 to
tell them that she had decided not to the get the tinted glasses. As a result, her first
thought when she discovered that her access had been blocked was that it was because
she had submitted a claim based on an estimate. On her own evidence, the grievor
thought that IA already knew that she had filed her claim based on an estimate. The
grievor was not coming forward with an admission. She thought she was already under
suspicion, and the evidence strongly suggests that she was simply trying to minimize the
damage by saying that she had decided to not get the glasses after all and was providing a
rationale for her decision.
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99. For all of these reasons, nothing that the grievor has offered by way of an
explanation, excuse, or justification minimizes the seriousness of filing a claim on
January 10, 2019 for $424 for glasses for herself. This claim was false and misleading.
100. I turn now to her June 30, 2017 claim for $429 for glasses for her son and her July
17, 2018 claim for $465 for glasses for her husband. There is no explanation for the first
claim and no evidence of any purchase. The best that the grievor can offer is her
hypothesis that when her son was home from University in June of 2017, he may have
been given an estimate for his glasses and then told her the amount. She assumed he had
bought them and she claimed the amount. Taking this explanation at its highest, IA
deposited $400 to the grievor’s bank account for something that she now admits was
never purchased. This claim was false and misleading.
101. With respect to her claim for her husband’s glasses, the grievor’s explanation is
not materially different and IA deposited another $400 to the grievor’s bank account for
something that she now admits was never purchased. This claim was false and
misleading, but the grievor’s reaction when she was asked to provide evidence of this
purchase is equally if not more troubling.
102. The grievor insisted to the employer until at least April 26, 2019 that the glasses
were on a counter in her home, and that Dr. Hicks’ office had made a mistake. Two
factors suggest that the grievor maintained these stories long after she knew they were not
true. In other words, the evidence strongly suggests that she misled the employer for
weeks if not months.
103. First, it defies common sense that she could reasonably hold this belief for very
long without actually satisfying herself that a pair of glasses that had cost $465 at Dr.
Hicks’ office were, in fact, “on the counter”. She offered to send a picture of them but
never did so. Either they were there or they were not. The grievor has now admitted that
they were never there, which means that they were not there in February, when she was
first asked to provide some proof that they had been purchased.
104. Second, the grievor’s secret recording of her April 26, 2019 conversation with Ms
Brown strongly suggests that sometime in March 2019 the grievor knew that her husband
had received an estimate for new glasses but had not purchased them. The grievor chose
not to mention this to the employer, and although she “soft-pedalled” the “glasses are on
the counter” story from that point on, she continued to maintain the fiction that Dr.
Hicks’ office had made mistakes.
105. For these reasons, I find that the grievor was not completely honest and forthright
with the employer during its investigation. In my view, it is very difficult to see how the
grievor could possibly reestablish the employer’s trust and confidence after this type of
behaviour.
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106. Finally, the grievor says that the incorrect amounts for the other claims were typos
or similar mistakes. For one claim, she was thinking about a number, (the amount that the
test usually costs) and entered that number when the test actually cost less. According to
the grievor, these were acts of carelessness or inattention. Her “thoughts and surmising”
have changed about how these mistakes happened, but she never intentionally submitted
false or misleading claims. The grievor’s position is undermined by two important
considerations.
107. First, IA reviewed all of her claims for 3 years, and there were no errors in the
benefit carrier’s favour. If the grievor was simply making mistakes, it is likely that she
would have made at least one mistake that resulted in her being paid less than the amount
of the actual expense. When all of the mistakes that she made are in her favour, this
argument loses its persuasiveness.
108. Second, the preponderance of the evidence does not support the position that the
grievor is mistake-prone or careless. Her performance appraisals say quite the opposite,
as does the evidence of her managers and supervisors. Overall, the evidence suggests that
the grievor is not predisposed to make mistakes when she files her benefit claims.
109. For all of these reasons, I find that the grievor submitted false or misleading
claims in all 6 of the problematic transactions that were first identified by IA. The grievor
breached the employer’s trust when she submitted these claims.
110. This brings me to an assessment of whether the grievor has frankly acknowledged
her misconduct. In some situations where serious misconduct such as a breach of the
employer’s trust by the employee is involved, remorse and an apology can save the
working relationship. Both parties referred to cases where this principle has been applied.
The most that can be gleaned from these cases is that they all turn on their particular facts
and circumstances.
111. Here, the grievor belatedly and begrudgingly said that it was wrong for her to
submit the January 10, 2019 claim for $424 for glasses for herself. Even so, she
continued to cling to her explanation for why she filed that claim and how she behaved
afterwards, as if this somehow justified what she had done. Her words do not show
remorse nor do they constitute an apology to the employer whose trust she breached. Her
response for the two other claims where she twice received $400 and for which she never
produced any record was no more compelling. Her response to the claims where she
submitted inflated amounts was to say that they were mistakes, and for reasons set out
above, this explanation is not persuasive. In any event, there is no evidence before me
that she has ever apologized for submitting those claims. Overall, the evidence strongly
suggests that the grievor has only recently arrived at the stage where she admits that they
are mistakes, and that even now, there is scant evidence that she accepts any degree of
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responsibility for them. These very limited admissions are also mixed with words that
suggest she is either not in control (eye condition, multi-tasking, thinking about other
numbers) or not entirely responsible (IA doesn’t get back to her, IA won’t pay, Dr.
Hicks’ office makes mistakes). It is very difficult to have confidence that the grievor
appreciates at all that she breached her employer’s trust and that she is therefore the sole
author of her own misfortune.
112. Moreover, the overall tone of these few admissions is far from apologetic; instead
they share the same defensive and defiant tone that characterize nearly all of her
communications with IA and with her employer. In my view, the grievor’s comments do
not constitute the type of frank acknowledgement of her misconduct that is contemplated
by the relevant case law. It is very hard to see how the employer could rebuild its
confidence and trust on such an inadequate foundation.
113. A useful framework for assessing the appropriate penalty in cases such as this is
the decision of Arbitrator Arthurs in Canadian Broadcasting Corp. v. CUPE (1979) 23
L.A.C. (2d) 227. This leading case sets out a list of well-known considerations that while
not exhaustive, are helpful in assessing the evidence in this matter. For the reasons set out
above, having carefully considered the evidence and the parties’ submissions, I find that
the only considerations which are supported by the facts are the past record of the grievor
(including her years of service) and the impact of the penalty on her.
114. The grievor has many years of service and a discipline-free work record. These
are mitigating factors. It is clear that the penalty of discharge is the most severe
consequence for her misconduct, and losing her job stands to have a significant impact on
her pension when she is a year or so away from being eligible to retire with a full
pension. I accept that the economic impact of the penalty on the grievor is severe.
115. The considerations set out in the CBC case are really a framework for answering
the larger question of the future prospects of acceptable behavior by the employee. Here,
the grievor’s misconduct is very serious and she was not completely honest and forthright
with the employer during its investigation. The comments that she has chosen to make
about her own responsibility have been guarded and qualified. She has not been truly
apologetic. All of this gives rise to a very significant concern that she has not accepted
full responsibility for what she did. This further undermines the employer’s ability to be
confident that it can trust her if she is reinstated. The employer’s trust has been broken,
and the grievor has not given sufficient reason to vary the penalty of discharge. As a
result, the grievance is dismissed.
Summary and Disposition
116. The grievor submitted 6 false or misleading benefit claims between 2016 and
2019. She submitted these claims through her online account with the County’s benefit
carrier, which operated based on an honour system. The grievor breached the employer’s
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trust when she submitted these claims. I also find that the grievor was not completely
honest and forthright with the employer during its investigation.
117. The grievor’s conduct justified the termination of her employment. While there
are some mitigating factors, they do not provide a sufficient basis for me to exercise my
discretion under section 49(17) of the Act and substitute a lesser penalty. As a result, the
grievance is dismissed.
Signed at Ottawa, Ontario on December 12, 2019
Andrew Tremayne