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166-2-30740 (2001 PSSRB 129)
Cochrane v. Treasury Board (Health Canada)
Before: Y. Tarte
Appearances: Cochrane, for the Grievor; H. Newman, for the Employer
Decision rendered: December 18, 2001
Jurisdiction – Employer's refusal to reimburse travel costs – Whether disguised disciplinary action – Conflict of interest – the grievor had been employed as assistant deputy minister of Health Canada with responsibility for managing Native and Inuit health programs – following a policy review exercise the employer concluded that the grievor was unsuited for continued employment in the department – the employer was unsuccessful in its attempts to find alternate employment for the grievor elsewhere in the federal Public Service – accordingly, the employer considered the possibility of an interchange assignment for the grievor outside the Public Service – ultimately it was decided that the grievor would go to the AMA, a corporate entity created by several Indian bands to provide common services, for two years in a senior position to help with business development – the interchange assignment was to commence on September 1, 2000, and would be fully funded by Health Canada – in September 2000, the employer became aware of some large financial transactions which had been recently authorized by the grievor to the benefit of the AMA and the VFAF, two organizations set up to help natives with drug and alcohol problems – on September 29, 2000, the Deputy Minister advised the grievor that he wished to meet with him to discuss the matter after the Thanksgiving weekend – in the meantime, the Deputy Minister advised the grievor that he should not "act in any way in consequence of [his] proposed interchange agreement" – they met on October 12, 2000 and the grievor agreed to provide justification for the financial transfers, which he had authorized, upon his return from vacation on October 24 – on October 18, the Deputy Minister became aware, through an article in the newspaper, that the grievor was participating in a Caribbean cruise sponsored by the VFAF – the employer was concerned that the funds in question might have been used for the cruise and that the grievor's presence on the cruise created the appearance of a conflict of interest whether he had paid for his participation or not – the Deputy Minister contacted the grievor and ordered him back to Ottawa as soon as possible – the grievor was indefinitely suspended without pay pending investigation into further allegations that he had also accepted from the VFAF the payment of a trip to Hawaii in September 2000 – ultimately, the grievor resigned from the Public Service – the grievor requested the employer to reimburse him in the amount of approximately $7500, being his costs and expenses relating to his early return from vacation in October 2000 – the employer questioned the jurisdiction of an adjudicator to hear and determine such a grievance as the employer maintained that its action was administrative in nature – the grievor claimed that the employer's refusal to compensate him for this amount constituted disciplinary action resulting in a financial penalty and, therefore, an adjudicator had the jurisdiction to hear and determine it – the Chairperson determined that the employer's action was administrative in nature rather than disciplinary – therefore, an adjudicator had no jurisdiction to hear and determine the matter – however, even if the employer's action had been disciplinary in nature, the Chairperson expressed the opinion that it was merited as the grievor's conduct was inappropriate and reprehensible.