'The employer deceitfully disguised its failure to conduct a proper investigation'
The Canada Border Services Agency (CBSA) must pay $75,000 after acting "deceitfully" and in "bad faith" in its termination of an employee, according to a recent decision by the Federal Public Sector Labour Relations and Employment Board.
In 2018, CBSA terminated the employment of Anne Kline, a director general at the agency, accusing the employee of negligence resulting in the loss of about $26 million in import duties which it could have imposed against a company, according to a CBC report.
The file concerned whether products known as "plastic cream" should be reclassified as dairy products, which would have significantly increased the duties owed.
The company argued the proposed classification would have "catastrophic impacts on its business and community," including bankruptcy, mass layoffs and regional economic slowdowns, along with negative political attention and bad press, according to the report.
However, the labour board's decision noted that some officials at CBSA believed the company's response should not change the proposed classification of the product.
Kline urged further investigation into the matter, citing "information gaps" and advising her team to "dig deeper" into the product’s manufacturing process. Despite this, no decision was made before the critical deadline to collect retroactive duties, which expired on Jan. 1, 2015, according to the report.
Previously, a group of eight migrant workers from Mexico was awarded a total of more than $23,000 in lost compensation after they won a wrongful termination case they filed against their employer.
Failed investigation at CBSA
In March 2014, CBSA went through a reorganization and Brent McRoberts was brought in to lead the agency's merged trade and anti-dumping program. The board said that after McRoberts came on board, Kline was no longer the ultimate authority within the trade directorate. The board's decision said the merger "effectively diminished her leadership."
McRoberts led the disciplinary process against Kline.
According to the labour board’s decision, McRoberts had been directly involved in the file but evaded scrutiny. The board found that his actions effectively sidestepped his “potential responsibility or culpability," reported CBC.
The Board found that “nothing indicated that the grievor fulfilled her responsibilities negligently”. It concluded that the employer did not prove misconduct or that the termination of her employment was warranted or for cause.
“The employer’s disciplinary process was profoundly untimely. It failed to investigate the allegations, which the Board found was compounded in that the person who led the disciplinary process was directly implicated in the company’s file in much the same way as was the grievor, but their oversight and override exceeded hers,” said the board.
The labour board also said that almost all the lost duties happened after Kline had left and McRoberts was in charge.
“The employer’s failure to investigate also shielded others from liability and did not determine the true reasons for what happened with the lost duties,” said the federal labour board.
Speaking to HRD, employment lawyer Dana Kiefer – an associate at Lawson Lundell – says that reviewing and renewing contracts – especially those including termination clauses – shouldn't just be a reactionary measure, but an ongoing process, ideally done with legal counsel.
