Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2019 More Cases coming into an office. Michaud and other counter agents were usually only supposed to help taxpayers with appointments if their issues couldn't be resolved over the tele- phone. Michaud found some people were irritated with not having direct communi- cation and more complications if appoint- ments were needed. Other CRA employees sometimes asked counter officers such as Michaud to look into their tax files or verify data. Employees were prohibited from looking into their own files, but could ask another counter officer to do it. CRA eventually appointed specific of- ficers to answer employee questions in or- der to ease the workload of counter officers. Michaud was often one of these designated officers. Changing procedures By 2007, CRA changed its practice and de- cided it would no longer designate counter officers to help employees. Employees were encouraged to use the "normal channels" available to all taxpayers — the 1-800 num- ber, website, self-serve kiosks, and appoint- ments with counter officers if necessary. It sent a memo to employees explaining the change, which it repeated in 2008, 2009, and 2011. In 2011, CRA also reminded employees that they must not access the tax information of themselves, a relative, friend, or colleague, nor should they access information "that is not part of their official duties or assigned workload." In October 2012, Michaud's supervisor told him that "no longer and under no cir- cumstances should he serve his colleagues like other taxpayers" and he was not to ac- cess their files. ere was no evidence that Michaud accessed any of the files after April 2012. In November 2012, CRA's internal affairs and fraud control division informed the deputy commissioner for Quebec that it had launched an investigation into Michaud that had revealed he had "accessed the confiden- tial information of 15 work colleagues and their family members 811 times" between Jan. 1, 2005, and Dec. 31, 2011. e division then moved to a disciplinary investigation that looked at 23 information accesses af- fecting nine taxpayers. e disciplinary investigation found that Michaud had made unauthorized accesses and disclosure of confidential information of the nine taxpayers and gave preferential treatment in processing requests for five of them. When Michaud was called to schedule an investigative interview, he was "floored," as he had tried to avoid conflicts with clients or working on files of relatives or friends. How- ever, he felt it was part of his job to answer questions from colleagues in his office and conduct searches to help them. e investigation involved interviews with managers and team leaders who had supervised Michaud, and they said he had a hard time adjusting to the new practice of redirecting taxpayers to telephones and refusing to help them without an appoint- ment. He had also been told to stop serving the office's employees when they should be using the normal procedures to get assis- tance. On Feb. 24, 2014, Michaud was called into a disciplinary meeting. e investigation had found two acts of misconduct — un- authorized access to taxpayer information or to sensitive or confidential information, including preferential treatment, and un- authorized disclosure of taxpayer informa- tion or sensitive or confidential information. He was told a minimum level of discipline was required — 30 days' suspension – but if Michaud demonstrated remorse it could be reduced to 20 days. However, Michaud felt he didn't deserve discipline. Michaud explained he had been asked for help by the taxpayers in question due to difficulties they had understanding what they had to do. He recommended the 1-800 number to them but some came back to him saying they couldn't figure out the directions provided on the phone. Michaud said he "could not admit that helping colleagues was a wrongdoing against the employer since it had been a significant part of his duties for a long time." CRA suspended Michaud for 30 days without pay beginning April 9, 2014. He filed a grievance, arguing the discipline was "un- fair and exaggerated." On Oct. 1, 2013, CRA closed all of its ser- vice counters and tax services offices were no longer open to the public. e board found that Michaud's miscon- duct wasn't properly characterized in the investigation report. e information he ac- cessed wasn't necessarily unauthorized, as Michaud had done them in good faith at the request of the taxpayers involved, according to rules that had once been in effect. e board also found that the preferential treatment for colleagues was before he was warned in October 2012 about not help- ing people without an appointment — he stopped doing it after that. e board determined that there was a certain level of condonation by CRA for Mi- chaud's actions during the transition of pro- cedures and Michaud's intent was in good faith. When he was clearly told not to access the information of family and friends or give anyone preferential treatment, he stopped doing it, said the board. e board also considered Michaud's length of service with CRA and the lack of previous discipline and determined the 30- day suspension was excessive. CRA was or- dered to replace the suspension with a five- day one and reimburse Michaud for lost pay and pension contributions for the other 25 days. For more information see: • Michaud c. Agence du revenue du Canada, 2018 CarswellNat 8304 (Fed. Public Sector Lab. Rel. & Emp. Bd.). Counter officers became by appointment only « from CRA WORKER on page 1 reducing the vacation pay an employee is entitled to, even in the case of a statutory leave. However, if the employer provides vacation as a specified number of weeks of paid time off instead of as a percentage of wages, the employee will continue to earn paid vacation while off on leave, unless the employment agreement or employment contract specifies otherwise. Again, statu- tory leaves are protected in many jurisdic- tions, such that paid vacation continues to be earned while the employee is on leave. Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. Time or percentage? « from ASK AN EXPERT on page 2 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as navigating benefits during the notice period, discipline and dismissal for off-duty conduct, Ontario's employment standards changes, and diversity in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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