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HomeMy WebLinkAbout2008-2807.Lall.12-01-04 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2008-2807 UNION#2008-0542-0035 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lall) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Jennifer Richards Ministry of Government Services, Labour Practice Group Counsel HEARING April 12, 29 & 30, May 25, June 3 & 17, September 10, November 23, December 3 & 13, 2010, January 10, 2011. - 2 - Decision [1] In a grievance dated September 26, 2008, Mr. P. Lall claims that the Employer contravened the Collective Agreement when it terminated his employment in September of 2008. In his grievance, Mr. Lall requests reinstatement to his position as an Enforcement Service Representative (“ESR”) within the Family Responsibility Office (“FRO”) and full compensation. Mr. Lall takes the position that he did not engage in any culpable conduct. Near the completion of his opening statement and after consulting with Mr. Lall, Union counsel advised that Mr. Lall was also seeking general damages because of the way he was treated by the Employer. [2] The Employer’s reasons for discharging Mr. Lall are set out in a letter dated September 12, 2008, from Ms. N. Liston, Director, Client Services Branch. In essence, the Employer discharged Mr. Lall because he was dishonest with the Employer on two occasions. The first instance of dishonesty occurred when Mr. Lall allegedly engaged in the “Misrepresentation of the circumstances surrounding the results of the Criminal Reference Check conducted at your time of hire”. The Employer maintains that Mr. Lall failed to disclose the true facts giving rise to his criminal charges when he was asked for an explanation in June of 2006. The second instance occurred when he allegedly engaged in the “Misrepresentation for your reason for a request for a leave of absence without pay”. Mr. Lall had requested a leave of absence without pay in November of 2007 to care for his ill mother. The Employer granted him a leave of absence for three months starting November 26, 2007. In January of 2008, while Mr. Lall was on his leave of absence, the Employer discovered the facts giving rise to the criminal charges against Mr. Lall. The Employer learned from a Canada Revenue Agency (“CRA”) press release that Mr. Lall pleaded guilty to two criminal charges on June 18, 2007, and that he had been sentenced to 18 months in jail on November 29, 2007. The Employer maintains that Mr. - 3 - Lall was dishonest when he did not disclose the real reason for his leave of absence request. It concluded that his misconduct amounted to a breach of trust that irreparably damaged the employment relationship and that the loss of trust was inconsistent with his duties and responsibilities as an ESR at FRO. [3] The oral and documentary evidence introduced over many days of hearing was extensive. The Employer called the following persons to testify: Ms. P. Delano, a forensic investigator with the Forensic Investigation Team, Internal Audit Division, Ministry of Finance; Ms. D. Koukouves, a Manager of Enforcement Services at FRO; Mr. A. Wisdom, a Manager of Enforcement Services at FRO; Ms. D. Karki, a Manager of Enforcement Services at FRO; Mr. L. Helpert, an Human Resources Consultant at the relevant time; and Ms. Liston. The Union called Mr. Lall as its only witness. [4] Employer counsel argued that the evidence established that Mr. Lall was dishonest in the two instances alleged and that his misconduct constituted just cause for discharge. In the alternative, counsel submitted that this was an appropriate case to award Mr. Lall compensation, and not reinstatement, if I concluded that just cause for discharge had not been established. Union counsel argued that the Employer did not prove its allegations of dishonesty against Mr. Lall with the result that Mr. Lall should be reinstated and fully compensated. In the alternative, counsel submitted that the penalty of discharge was not warranted in the circumstances of this case even if I found that Mr. Lall had engaged in some misconduct. Counsel also submitted that this was not the kind of case where compensation should be awarded as an alternative to reinstatement. - 4 - [5] Employer counsel relied on the following decisions in support of her submissions: OPSEU (Bodai) and Ministry of Training, Colleges and Universities (2001), GSB No. 1721/00 (Petryshen); OPSEU (Mounsey) and Ministry of Housing (1997), GSB No. 651/95 (Dissanayake); Re Greater Toronto Airport Authority and P.S.A.C. (2002), 106 L.A.C. (4th) 329 (Brandt); Re Ineos Nova Ltd. and C.E.P., Local 914 (2010), 193 L.A.C. (4th) 241 (Sheehan); Re Canada Post and C.U.P.W. (1990), 17 L.A.C. (4th) 67 (Blasina); Re Quality Meat Packers Ltd. and U.F.C.W., Loc. 743 (1998), 69 L.A.C. (4th) 410 (Surdykowski); Re Kennedy House Youth Services Inc. and O.P.S.E.U., Local 585 (1996), 53 L.A.C. (4th) 54 (M. Picher); Re Manitoba and M.G.E.U. (1994), 44 L.A.C. (4th) 82 (M. Freedman); Re Sysco Food Services and C.A.W.- Canada, Loc. 414 (2004), 130 L.A.C. (4th) 273 (Gray); OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services (2008), GSB No. 2003-1520 et al. (Abramsky); Re DeHavilland Inc. and C.A.W.-Canada, Loc. 112 (1999), 83 L.A.C. (4th) 157 (Rayner); Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727; OLBEU (Massa) and Liquor Control Board of Ontario (2000), GSB No. 2033/97 et al. (Abramsky); Hendrickson Spring v. U.S.W.A., Local 8773, [2009] O.L.A.A. No. 34 (Solomatenko); and, Re Wasaya Airways and A.L.P.A. (2010),195 L.A.C. (4th) 1 (Marcotte). Union counsel referred me to the following decisions during his submissions: Re Tenant Hotline and Peters and Gittens (1993), 10 L.A.C. (3d) 130 (MacDowell); Re Cannet Freight Cartage Ltd. and Teamsters Union, Loc.419 (1993), 35 L.A.C. (4th) 314 (Bendel); and, OPSEU (Seguin) and Ministry of Community safety and Correctional Services, [2005] O.G.S.B.A. No. 10 (R. Brown). [6] I have carefully reviewed the extensive oral and documentary evidence. I have also considered the submissions of counsel. Given that Mr. Lall denies that he engaged in any culpable conduct, credibility is a particularly important feature of this case. Notwithstanding the - 5 - skillful efforts of Mr. Holmes to advance Mr. Lall’s interests, both factually and legally, I am compelled to conclude on the evidence before me that Mr. Lall was dishonest on the two occasions relied on by the Employer. Where there was a material conflict between the testimony of the Employer’s witnesses and Mr. Lall’s testimony, I preferred the testimony of the Employer’s witnesses. I simply did not find Mr. Lall to be a credible witness on many of the significant issues. I am satisfied that the Employer had just cause to discharge Mr. Lall and that there is no basis for substituting a different penalty. My reasons for these conclusions are set out below. [7] Prior to securing a position with the Employer, Mr. Lall had been employed as a tax auditor by the CRA. His employment with the CRA ended in January of 2005. Following an investigation, the RCMP charged Mr. Lall on November 30, 2005, with fraud, breach of trust and personation. Mr. Lall was asked during his cross-examination whether the circumstances which formed the basis for the criminal charges were the same circumstances that had led to his dismissal by the CRA. He indicated that he had been terminated by the CRA for breaches of policy which were completely unrelated to the circumstances which gave rise to the criminal charges. A review of all of the circumstances leads me to believe that it is unlikely that Mr. Lall’s discharge from the CRA was completely unrelated to the circumstances giving rise to the criminal charges. [8] Mr. Lall began a search for other employment in October of 2005. He was looking for a position which did not require a criminal records check. He found one when he noticed a FRO job add for a Client Services Clerk (title later changed to ESR) which made no reference to a criminal records check. Mr. Lall applied for the position and proceeded through the various - 6 - stages of the hiring process, including an interview. Mr. Wisdom was the competition lead and was on the selection panel. He indicated that all of the candidates who were interviewed were provided with a folder with forms to sign, including a consent form for a criminal records check. Mr. Lall indicated in his testimony there was no such form in his folder and that he therefore did not sign one. He was not asked about a criminal records check during the hiring process, including during his interview on February 1, 2006. A criminal records check was only pursued for the successful candidates. In a letter dated February 9, 2006, Mr. Wisdom advised Mr. Lall that he was not one of the successful candidates. However, because of a need to backfill some positions and the fact that he had met the minimum score on the competition, Mr. Lall was subsequently given a 6 month unclassified contract for the ESR position. He started the job on April 3, 2006. On April 5, 2006, Mr. Lall signed the offer letter dated March 30, 2006, thereby formally acknowledging acceptance of the temporary position. The offer letter does not indicate that the Employer’s offer is conditional on a criminal records check. Again, Mr. Lall was not asked to sign a form consenting to a criminal records check and the subject was not raised with him during the process he went through to secure the unclassified position. [9] FRO operates under the authority of the Family Responsibility and Support Arrears Enforcement Act. Its primary role is to enforce court orders for child and spousal support by ensuring that support payments are properly transferred from payers to support recipients. ESRs work in a call center environment, fielding numerous calls from clients for six hours each day. There are a number of enforcement teams, each with its own manager. In order to perform their job, ESRs have access to a number of databases. They have access to sensitive and confidential information, such as names, addresses, social insurance numbers, employer information and banking information. Although Mr. Lall appeared to minimize the sensitive nature of the ESR - 7 - position, I have no difficulty in accepting the Employer’s characterization of the ESR position as one of fiduciary trust. The absence of these words in the job description is not determinative. The nature of an ESR’s duties and the sensitive and confidential information available to an ESR require a high degree of trust between the Employer and an ESR and between the ESR and clients. [10] On June 12, 2006, approximately 2½ months after he started at FRO, Mr. Lall signed a consent form authorizing a criminal records check. He testified that Mr. Wisdom came to his desk on June 12, 2006, and asked him to sign the form. He indicated that he asked Mr. Wisdom why he needed to sign it and was told that it was only for their records and that it would have no impact on his job. Mr. Lall indicated that he then signed and dated the form. Mr. Wisdom testified that had no recollection of the event as described by Mr. Lall and that he was not in a position to dispute Mr. Lall’s version of what occurred. Given how the Employer treated the CPIC results and other aspects of Mr. Lall’s testimony which I found untruthful, I have difficulty in accepting Mr. Lall’s version of this event. Although Mr. Lall’s testimony about what he was told when he was asked to sign the consent form is uncontradicted, I find it difficult to accept that a manager would initiate the process for securing a criminal records check and at the same time advise an employee that it would not have an impact on his job. [11] The CPIC results were conveyed by the OPP to the Ministry in a letter dated June 21, 2006. The letter indicated that Mr. Lall did not have a criminal record. However, it did disclose that there were outstanding charges filed by the RCMP on November 30, 2005. The particulars of the charges simply read: “Fraud, Breach of Trust, Personation”. A case number and a court date of February 16, 2007, were also referenced in the letter. As Mr. Lall’s manager, Ms. Karki - 8 - was provided with a copy of the CPIC results on June 27, 2006. After consulting with others, including Ms. Liston and Mr. Trimble from Human Resources, it was decided that Ms. Karki should meet with Mr. Lall to find out what information he could provide management about the criminal charges. Later on June 27, 2006, Ms. Karki advised Mr. Lall that FRO had received the results of the CPIC check which was a serious concern given the nature of the work performed at FRO. Mr. Lall told her that he did not know what the concern was, that he had spoken to the RCMP, that the matter would be dealt with and that there was no issue. She told him that she would meet with him on June 29, 2006, at 2:00 p.m. to hear what he had to say about the charges. [12] At ADM van Son’s request, Ms. Karki and Mr. Helpert met with her during the morning of June 29, 2006. They advised her about the CPIC results and she asked them to follow up with her after their meeting with Mr. Lall. When Ms. Karki and Mr. Helpert met with Mr. Lall on June 29, 2006, Ms. Karki told Mr. Lall that the criminal charges were serious, that they could result in his termination and that management wanted to understand the circumstances around them. She showed Mr. Lall a copy of the CPIC results. Although Mr. Lall provided a different version of what he said at this meeting during his testimony, I find that Mr. Lall told Ms. Karki that the circumstances giving rise to the charges were as follows. He indicated that he and a partner had a business for many years where they completed income tax returns for clients. Several of his clients received reassessments resulting from tax audits and were unhappy. The clients advised the tax office that he had completed the returns and sent them in without their permission and that is where the charges stemmed from. He had no signed authorization from the clients to submit the completed forms. He had a verbal agreement with them given that they were long term clients and there was a trust factor for verbal direction from these repeated - 9 - clients. He indicated that his partner was not charged. He said that this was just a misunderstanding. He further told them that he has a lawyer and believes that this will all be cleared up with no impact on him. At the conclusion of the meeting, Ms. Karki advised Mr. Lall that she would follow up with him in the next few days. [13] In his testimony about the June 29, 2006 meeting, Mr. Lall indicated that he conveyed the following information about the charges to Ms. Karki. He said that the charges concerned allegations of tax fraud and that the CRA was saying that he had filed tax returns for individuals who were deceased. He had a partner and that they had filed many years of tax returns for several individuals. He did not know these individuals and did not have authorization from them. He did not know that they were dead at the time. He was an employee of the CRA at the time and that this raised a trust issue. [14] There were a number of reasons for preferring Ms. Karki’s testimony about what Mr. Lall told her regarding the criminal charges. She took notes of the meeting and Mr. Helpert corroborated all of the key aspects of her testimony. Her testimony about Mr. Lall’s story was not shaken by a vigorous cross-examination. When it was put to her during cross-examination that Mr. Lall told her that he was an employee of the CRA and had access to its system, her answer was “absolutely not”. When it was put to her that Mr. Lall told her that he did not know that some clients were deceased, she unequivocally said that Mr. Lall did not mention deceased clients. Ms. Karki gave her testimony in a straight-forward and reliable manner. There was no reason for her to be untruthful. I found her testimony to be credible in all respects, including the part which focused on what she had been told by Mr. Lall about the criminal charges. - 10 - [15] Ms. Karki believed Mr. Lall’s explanation about what gave rise to the criminal charges. So did Mr. Helpert. Ms. Karki believed that his story flowed and that his facts were believable based on the charges. Given that he was calm and relaxed during their meeting and that he did not falter when answering questions, she did not feel that Mr. Lall was making up a story. She concluded that Mr. Lall should be allowed to continue working as an unclassified employee. Before getting back to Mr. Lall, Ms. Karki discussed what occurred at the meeting and her conclusions with senior managers. No one disagreed with her view about keeping Mr. Lall on at FRO. When she advised the ADM that she believed that Mr. Lall was being truthful, Ms. Von Son indicated that Mr. Lall should be kept on because we want to trust our employees. Ms. Von Son confirmed for Ms. Karki that the ultimate decision regarding Mr. Lall was Ms. Karki’s. [16] Although Mr. Lall had a different view about what occurred subsequent to the June 29, 2006 meeting, I find that Ms. Karki did follow up with Mr. Lall during the week following their meeting. She advised him that the Employer would not be terminating his employment. She also told him to keep the Employer informed about the criminal charges. Mr. Lall denied that there was any follow up to the June 29, 2006 meeting. He also indicated that Ms. Karki subsequently did ask him to sign a document that set out what was discussed at the June 29, 2006 meeting. He indicated that he signed the document and was not given a copy of it. I preferred Ms. Karki’s testimony about what occurred subsequent to their meeting. In my view, it would be highly improbable that there would be no follow up to the kind of meeting that took place on June 29, 2006. I also believe her testimony that she did not ask Mr. Lall to sign a document setting out what was discussed at their meeting. - 11 - [17] Given its conclusion that Mr. Lall honestly described the circumstances that led to the criminal charges, the Employer did not consult the RCMP about the charges. It did not follow up on any of the court dates and did not ask Mr. Lall about the results of court dates. Pursuant to Ms. Karki’s instruction and its belief that Mr. Lall had been honest with them, the Employer simply relied on Mr. Lall to notify them of any developments with the criminal charges. Subsequent events disclose that Mr. Lall had no interest in advising the Employer about the progress of the criminal charges. [18] In February of 2007, Mr. Lall applied for a permanent ESR position and was successful. He was formally offered the position by letter dated March 1, 2007. He signed the offer letter on March 13, 2007, thereby formally accepting the position. Mr. Wisdom was again the competition lead and on the selection panel. There was no reference to a criminal records check during this hiring process. No one asked Mr. Lall about such a check. The offer of the job to Mr. Lall was not made conditional on his passing a CPIC check. Mr. Wisdom was unaware of the results of the earlier CPIC check. As of December 2006, Ms. Karki was no longer Mr. Lall’s manager. She was not involved in the competition and she did not know that Mr. Lall had applied for a permanent ESR position. [19] On June 18, 2007, Mr. Lall attended before Justice Durno to enter a plea to the fraud and breach of trust charges. The transcript of the guilty plea reveals that Justice Durno went to great lengths to ensure that Mr. Lall was aware of the particulars of the charges and that his plea was made voluntarily. He also made it clear to Mr. Lall that the Crown and his lawyer would make representations on sentencing but that the final determination on sentence was his alone. Mr. Lall was then arraigned on counts one and twenty, pleading guilty to both counts. Count one - 12 - read as follows: (Mr. Lall) did by deceit, falsehood or other fraudulent means, defraud the government of Canada of money, the sum of $150,945.96, by obtaining or claiming income tax refunds, Canada Child Tax Benefits and Goods and Services Tax Credits, that he or any other person was not entitled to, contrary to Section 380(1) of the Criminal Code of Canada. Count twenty read as follows: Being an official working as a tax auditor with Canada Customs and Revenue Agency did commit a breach of trust in connection with the duties of his office be accessing or using taxpayer information other than in the course of the administration of the Income Tax Act, contrary to section 122 of the Criminal Code of Canada. The Crown then read in the circumstances that formed the basis for the charges and Mr. Lall advised the Court that the facts as read by the Crown were correct. [20] Mr. Lall did not advise the Employer that he had pleaded guilty to the two criminal charges on June 18, 2007. He did advise the Employer that he would be absent on June 18, 2007 due to sickness. When asked during cross-examination if he had called in sick for June 18, 2007, Mr. Lall said that he did not recall the reason he gave the Employer for his absence on that day. [21] On November 7, 2007, Mr. Lall sent an email to his manager, Ms. Koukouves, requesting a leave without pay for up to one year to begin on Monday, November 26, 2007. He indicated in the email that the reason “is to take care of my mother who is living with me. She has become very ill and depends on oxygen 24/7”. Ms. Koukouves asked him to complete a Leave of Absence (“LOA”) form and to ensure that he provided more details about the need for the leave. Mr. Lall submitted the LOA form on November 7, 2007, accompanied with a letter containing additional details about his mother’s circumstances. Under “REQUEST FOR LEAVE AND REASON” on the form, Mr. Lall again referenced the need to care for his mother. - 13 - The Employer initially denied the leave request because of operational requirements and the length of the leave requested. A Union representative asked Ms. Liston to reconsider Mr. Lall’s leave request. After further consideration, the Employer granted Mr. Lall an unpaid leave of absence for three months to take care of his elderly mother. The leave would commence on November 26, 2007, with an expected return to work on February 4, 2008. These details were confirmed in a letter from Ms. Koukouves to Mr. Lall dated November 22, 2007. At no time did the Employer ask Mr. Lall to provide it with documentation to substantiate the basis for his leave request. It simply took his word that his mother was ill and required him to take care of her. Mr. Lall commenced his leave of absence from FRO as planned on November 26, 2007. [22] Mr. Lall appeared before Justice Durno for sentencing on Thursday, November 29, 2007. The transcript of this proceeding reveals that the Crown sought a jail term of four years. Mr. Lall’s lawyer, Ms. MacKay, sought a conditional sentence of two years less a day. When asked by Justice Durno what her position would be if her request for a conditional sentence was rejected, Ms. MacKay indicated that a term in the range of 6 to 9 months would be appropriate. Mr. Lall testified that Ms. MacKay did not discuss this response with him. In his sentencing remarks, Justice Durno noted that he had serious concerns about Mr. Lall’s credibility and reliability. The defense argued that a mitigating factor was the extent to which Mr. Lall’s mother was dependent on him. Without detailing all of what Justice Durno wrote on this issue, he did find that his mother is dependent on Mr. Lall to some extent, but apparently not to the extent portrayed by Mr. Lall and his family. Justice Durno found that a conditional sentence was not appropriate in the circumstances. He concluded that in the case of a “most serious breach of trust” and “well planned fraud” that “the fit sentence is one of 18 months”. Mr. Lall did not advise the Employer of this development. - 14 - [23] Mr. Lall commenced serving his sentence at the Maplehurst Correctional Centre on November 29, 2007. On January 5, 2008, Mr. Lall formally applied for a temporary absence permit (“TAP”) in order to take care of his mother. His request for a TAP was approved on humanitarian grounds, with conditions. Mr. Lall was released from Maplehurst on January 24, 2008. He testified that no one looked after his mother during the day while he was in jail. He indicated that his sister and brother dropped in to see her occasionally in the evening. Mr. Lall indicated that his mother had been hospitalized prior to his release and that after an additional week in hospital she returned to Mr. Lall’s home. Mr. Lall received a certificate of Parole with a release date of May 28, 2008. [24] As noted previously, the Employer became aware in January of 2008 of Mr. Lall’s incarceration from a CRA news release. In a letter dated January 11, 2008, Ms. Liston advised Mr. Lall that the Employer would be conducting an investigation. Mr. Lall remained off work without pay until his discharge. The investigation disclosed that Mr. Lall had not used his position at FRO to access data for an inappropriate purpose. Ms. Liston testified that the only grounds she relied upon to discharge Mr. Lall were those contained in the discharge letter. She indicated that she was not influenced by the criminal charges themselves, or the fact that Mr. Lall received a jail term. There is no reason to dispute this aspect of her testimony. Ms. Liston also indicated that she did not doubt that Mr. Lall’s mother was ill and needed some care. However, she was satisfied that Mr. Lall misrepresented the reason for his leave of absence request. [25] As I noted at the outset, I am satisfied that Mr. Lall was dishonest on the two instances relied on by the Employer. The first occasion occurred when he was asked by Ms. Karki to explain the circumstances giving rise to the criminal charges disclosed by the CPIC - 15 - results. What Mr. Lall told Ms. Karki is set out earlier in paragraph 12. The true circumstances giving rise to the criminal charges are referenced in the transcript of his guilty plea by the wording of counts one and twenty and in the facts provided by the Crown. They are also referenced in the transcript of the reasons for sentence where Justice Durno described the basis for the criminal charges as follows: Between 2003 and the end of January 2005 Mr. Lall was an auditor for the Canada Revenue Agency (CRA). In that capacity he took an oath of allegiance. Between August 1, 2003 and January 31, 2005 he filed over 97 T-1 returns on behalf of eighteen people. Most of the returns included claims for Canada Child Tax Benefits for children alleged to have been born in Alberta. When submitted, the returns included banking information to allow the government to make the refunds through direct deposits to six bank accounts, and to send the funds to various mailing addresses that were post office boxes. The total amount claimed was $150,955.96. Investigation revealed that Mr. Lall was the account holder for all of the bank accounts related to the 18 individuals and the renter of the post office boxes. He personally received over $143,000 and attempted to defraud the government of an additional $7,000. In order to perpetrate the fraud he made numerous unauthorized and illegal accesses to the CRA files for the 18 individuals, which contained confidential taxpayer information that he was not entitled to access. Further investigation established that 16 of the 18 persons were dead. The birth certificates filed to substantiate the child tax credit were false. The children did not exist. When a search warrant was executed at his home a template for the Alberta birth certificates were found on his computer. He also submitted personal tax returns for himself in which he falsely claimed Child Tax Benefits for three children alleged to be born in Alberta, as well as fraudulent claims for childcare expenses. When he testified on the sentencing hearing he explained that he started the scheme in 2003 by locating deceased persons and accessing their accounts. [26] There is no doubt that Mr. Lall misrepresented the circumstances which lead to his criminal charges. Contrary to what he told Ms. Karki, there was no misunderstanding that would be resolved with no impact to him. As well, the criminal charges did not stem from Mr. Lall completing tax returns without a written authorization from clients. Not only were many of the circumstances that he relayed to Ms. Karki untrue, he omitted to disclose many of the significant elements which led to the charges, such as the amount he received from his fraud and how he - 16 - committed the breach of trust. The story he provided to Ms. Karki was essentially a complete fabrication. [27] The Union took the position that the Employer did not prove its first allegation of misrepresentation because the CPIC check was not conducted at Mr. Lall’s time of hire, as was alleged in the discharge letter. Although I generally agree that an Employer must prove its specific allegations, I find this submission to be overly technical. The CPIC check was performed almost three months after Mr. Lall was hired. However, as the discharge letter makes clear, the essence of this allegation is that Mr. Lall misrepresented the circumstances of the criminal charges. Mr. Lall and the Union were well aware of when the meeting with Ms. Karki occurred and that the Employer was alleging that the misrepresentation occurred at that time. In my view, the fact that the allegation suggests that the CPIC check occurred when Mr. Lall was hired is not fatal to the Employer’s case. [28] In claiming that he did not misrepresent the reason for his leave of absence request, Mr. Lall relied on the fact that his mother required him to take care of her, as evidenced by his securing the TAP on compassionate grounds. He also claimed that he did not believe that he was going to jail, given the advice he had received from his lawyer. Mr. Lall’s uncorroborated testimony was that his lawyer told him he would likely get a conditional sentence which would allow him to continue working. He indicated that Ms. MacKay told him of a similar case where the defendant received a conditional sentence. He testified that he relied on what she told him and believed that he most likely would get a conditional sentence. He indicated that it was therefore unnecessary to advise the Employer that he wanted a leave of absence because he was going to jail. - 17 - [29] An employee is obliged to provide the reason for requesting a leave of absence. Although I do not doubt that Mr. Lall’s elderly mother has health issues and requires some care from Mr. Lall, I also had no doubt from the evidence that Mr. Lall misrepresented the reason for requesting a leave of absence. All of the objective circumstances suggest that Mr. Lall believed that it was very likely that he was going to jail. He engaged in a significant fraud and breach of trust. He made his request for a leave of absence within weeks of his sentencing hearing. He requested a leave of absence for one year, with a start date of November 26, 2008. I do not believe that it was simply coincidental that he wanted his leave of absence to start just prior to his sentencing hearing. Ms. MacKay did request that Mr. Lall be given a conditional sentence. However, Justice Durno made it very clear to Mr. Lall that he alone would determine the sentence. Without corroboration, I am not prepared in these circumstances to accept that Ms. MacKay told Mr. Lall that he would likely get a conditional sentence. Given the likelihood that Mr. Lall would be sentenced to jail and therefore unable to care for his mother, I was convinced by the evidence that Mr. Lall misrepresented the reason for his leave of absence request. [30] There is an obligation on an employee to be honest with an employer, particularly with respect to matters of some consequence. Mr. Lall’s misrepresentations constitute serious infractions. His dishonesty in the two instances relied on by the Employer go to the heart of the employment relationship. Although the Employer gave Mr. Lall the benefit of the doubt on more than one occasion, his conduct abused the trust the Employer had placed in him. Having breached that trust, the Employer was justified in concluding that it could no longer employ Mr. Lall at FRO, given the sensitive information that ESRs can access. I am satisfied that Mr. Lall’s - 18 - misconduct did irreparably damage his relationship with the Employer. The Employer had just cause to terminate Mr. Lall’s employment. [31] There is no basis to substitute a different penalty in all of the circumstances of this case. Although Mr. Lall performed his work well and had no previous discipline, he had very little seniority. His misconduct is very serious. His failure to be truthful during his testimony in a case where his dishonesty was the reason for his discharge is a factor which does not favour mitigation of the penalty. [32] It was on the basis of the foregoing that I concluded that Mr. Lall had engaged in the misconduct alleged in the discharge letter and that the Employer had just cause to terminate Mr. Lall’s employment. Accordingly, Mr. Lall’s grievance dated September 26, 2008, is hereby dismissed. Dated at Toronto this 4th day of January 2012. Ken Petryshen, Vice-Chair