The federal Public Service Commission says it was “deceptive” for Canada Border Services Agency to fire a woman without a proper investigation after failing to collect about $26 million in customs duties while shirking responsibility for another woman. It was an act, the Federal Public Service Labor Commission said.
“Overall, the employer’s egregious conduct in this matter was motivated by bad faith,” the Federal Public Sector Labor Relations and Employment Commission said in a recent decision.
“The employer deceptively concealed its failure to conduct a proper investigation and gave the appearance of due process.”
The lawsuit was filed by Anne Klein. She was fired by CBSA in 2018 after accusing CBSA of negligence that caused the company to lose about $26 million in import duties that CBSA could impose on businesses.
After years of proceedings, the Labor Relations Board, an independent quasi-judicial court, ruled this summer that there was no indication of negligence on Klein’s part, and the CBSA did not even begin a proper investigation. .
“While the reasons for the failure to investigate remain unclear, it is clear that the employer’s choices were appropriate to protect non-employees.” [Kline] and is not well placed to determine the actual reason for the schedules in the company’s files,” the decision said.
You can read the decision here.
The board’s decision said Brent McRoberts, who led the disciplinary process against Klein, was directly involved in the file and that his actions avoided “potential liability or negligence.”
Klein ultimately won her complaint, but the labor board’s final decision said Klein was hurt and blindsided by the CBSA’s actions and, years later, still struggles with self-confidence. .
Klein, through his lawyer, declined to be interviewed. McRoberts did not respond to CBC’s request for comment.
The lawsuit focuses on the CBSA’s handling of trade files. At issue was whether the companies’ products should be reclassified as dairy products, which would result in tens of millions of dollars in increased tariffs.
In the board’s decision, the name of the company in question is written in black. The board said identifying the business and disclosing its financial and manufacturing records “could cause harm.”
Klein urged staff to further investigate the complex file.
Border authorities have ruled that two products the company imported in 2011, informally known as “plastic cream,” should be reclassified as dairy products. The controversy centered on a technical issue regarding whether dairy products in plastic cream are essential to the product.
The company argued that the proposed classification would have a “devastating impact on its business and community,” including bankruptcies, mass layoffs and a downturn in the local economy, along with political attention and bad publicity.
According to the Labor Relations Board decision, some CBSA officials believe that the company’s response should not change the proposed product classification. Trade Planning Directorate General Klein felt there were still “information gaps” that made it impossible to make a definitive judgment, the board’s decision said.
Klein felt the agency didn’t have its “ducks in a row” and urged his team to “dig deeper” into the manufacturing process before recommending the decision via a briefing memo to the CBSA director, according to the decision. .
However, the CBSA faced an important deadline. If a verification decision creates an obligation, the CBSA may collect the obligation retroactively for up to four years before the decision is made.
In this case, authorities had to issue a ruling by January 1, 2015 if they wanted to apply the full amount of retroactive duties to the company’s imports.
In March 2014, CBSA underwent a reorganization and Mr. McRoberts was brought in as director of CBSA’s integrated trade and anti-dumping program. The board said that after Mr. McRoberts took over, Mr. Klein was no longer the ultimate authority within the Trade Directorate. The board’s decision said the merger “effectively diminished her leadership.”
CBSA employees told the board that they attended meetings with Klein and McRoberts in 2014 in which unresolved questions about the company’s files and manufacturing processes were discussed.
The labor committee said McRoberts testified that he did not remember these discussions. The board said this was “highly unlikely”, noting that it was the subject of a briefing note and dealt with a high-value mission.
Mr. McRoberts also testified that for most of 2014, he did not know how the key four-year rule worked.
“While this claim is consistent with his overall poor grasp of many issues and his spotty memory, this statement begs for disbelief. He has been briefed on the file and “It was discussed with him at many points by many players,” the board said.
It also found inconsistencies in Mr. McRoberts’ testimony regarding his ability to move the file forward. The board said McRoberts testified that he wanted Klein’s “blessing” before sending the meeting notes. Under cross-examination, he acknowledged that he could make these decisions himself, the board said.
“It’s like sabotage.”
The board said McRoberts testified that near the end of 2014, Klein reported that the company’s file was nearly complete and that the CBSA was working with laboratories and awaiting further test results.
In the end, no decision was made by the new year, and the window for full retroactive tariffs was closed.
The board said McRoberts blamed the delay in closing the file on “kind of sabotage” by Klein and suggested he delayed closing the file to protest the change. .
According to the board’s decision, the only support McRoberts provided Klein was a “vague idea” that they were not on the same page and that Klein was “not meshing.”
Klein was reassigned to a new team in January 2015 and was not given any of her files or workload with her, according to the ruling.
A few months later, she was dragged into a meeting and told that her behavior during the meeting at her new job was unacceptable, according to the ruling. The documents say she was told to go home immediately and “think about what you’ve done.”
She was not provided with details about the alleged conduct and her loss of employment was not discussed, according to the ruling.
“McRoberts Report”
The board said Mr. McRoberts spearheaded the hiring of an outside party to prepare Klein’s performance report. The Labor Commissioner suggested that the process was by no means independent and was “moving toward a predetermined conclusion.”
According to the board’s decision, an outside contractor reviewed documents provided by McRoberts and interviewed witnesses identified by McRoberts, but not Klein.
The committee said the final product, which it called the “McRoberts Report,” was also compiled under Mr. McRoberts’ direction.
The board said McRoberts told an independent reviewer that Klein was being investigated for allegations of harassment, bullying and abuse of power, but ultimately the allegations were found to be unfounded. It is said that it was considered.
The committee said there was a “troubling odor to the charges” against Mr. Klein, which were later abandoned or withdrawn.
“This is deeply concerning and suggests reasons other than legitimate discipline to remove sadness from the workplace,” the paper wrote.
Former CBSA president accused of bias
The board cited “obvious” deficiencies in the performance report, which then-CBSA Chairman John Osowski used to justify Klein’s firing in March 2018.
Osowski, who left the CBSA in 2022, testified that many of the unsubstantiated allegations against Klein were factored into his termination decision, even though they were deemed unfounded at the time the decision was made. .
“Mr. Osowski relied on the McRoberts report, which showed little respect for fair process and demonstrated clear concern about the actual causes of millions of dollars in unrecoverable tariffs,” the board said. There wasn’t,” he said.
Asked why he didn’t talk to Klein before firing him as requested, Osowski said, “No matter what she says, McRoberts’ version of events is more important than her version of events.” I answered frankly and without hesitation that it was good.” Decisions of the Board of Directors.
“This is the very definition of bigotry and bigotry,” the paper added.
CBC has contacted the CBSA and asked Osowski for comment. The agency passed on the message and Osowski said he had “no comment.”
CBSA appeal decision
In his testimony before the board, Klein called the performance report damaging and heartbreaking. She said she felt completely blindsided by her firing and was left at a “very dark time.”
“She felt isolated and depressed,” the board’s decision said. “She has a hard time second-guessing herself and trusting others.”
No one other than Klein has been formally disciplined in connection with the file, the board said.
Klein won his complaint and was reinstated. She was awarded more than $100,000 in damages, and the board argued that the CBSA’s actions were “deserving of condemnation and punishment.”
According to reports, she has a new job.
CBSA said the agency is bound by privacy laws and cannot provide information about investigations or disciplinary actions involving specific employees.
Spokeswoman Caroline Marchildon said: “We respect the decision of the Federal Public Sector Labor Relations and Employment Commission and will not appeal. We will implement the decision.”
According to McRoberts’ Linkedin page, he left the federal government to start a consulting firm.
