Shooting the Messenger
Till Death Do Us Part
Conduct hearings in accordance with the law, the principles of Natural Justice and render timely decisions and listens to arguments, including legal reasoning.
Mission Statement (partial), Public Service Staff Relation Board.
The Public Service Staff Relation Board judge who would review the evidence and listen to all this legal reasoning in the case of Bernard Payeur vs. Treasury Board (Foreign Affairs) was adjudicator Thomas W. Brown.
To argue that my dismissal was all well and good on behalf of the Treasury Board and by extension, Foreign Affairs, Luc Leduc, LL.D and Mylène Bouzigon, LL.D. In the background, Robert Cousineau, LL.D, Q.C., Solicitor for the Attorney General of Canada. To cross swords with this formidable gathering of Doctors of Law, the Public Service Alliance of Canada (PSAC), my union, sent Evelyne Henry, a former secretary with training in the art of adjudication.
Considering her handicap, Evelyne did a very credible job in presenting the mountain of evidence of systematic abuse of privilege and of the person. Her logic and organization of the facts was impeccable; her pointed, probing cross-examination of government witnesses, impressive.
The hearing before Thomas W. Brown lasted three days; a fourth day was reserved for closing arguments. The government based its entire case for my firing on my failure to produce the Currency Fluctuation Report using a desktop calculator, pencil and paper.
The evidence of official malfeasance quickly grew to overwhelming proportions. When they were not spouting nonsense in the defense of the indefensible, Foreign Affairs' witnesses were caught in lies and contradictions. At one point, a completely flustered witness for the department actually blamed me for Foreign Affairs alleged inability to keep track of millions of dollars in gains on foreign currency transactions because I had gotten myself fired.
To the logical, precise questions of Evelyne they responded in a manner that would have led a person unaware of what was going on, and walking into Thomas W. Brown's Hearing Room, to think that they had accidently walked into a rehearsal of a Monty Python sketch.
The following is a partial reconstruction from official documents, notes and my own recollections of Richard’s impeachable and somewhat surreal testimony. He was the one who had the unenviable task of having to defend his and the Department’s indefensible actions.
On the Impossible Report
Evelyne: Mr. Payeur had been producing the Currency Fluctuation Report for almost three years, using the department's computer, when you requested that he do the report using an adding machine?
Richard: We decided he did not need the computer to do the Currency Fluctuation Report*.
Evelyne: You also claim that, during all these years, no manager, including yourself, enquired as to how this report was done?
Richard: He would not tell us.
Evelyne: Not tell you? What about the detailed report he gave you on how the system worked in January of 1984?
Richard: I don't remember getting that report.
Evelyne: You don't remember getting a report called "Rapport sur le calcul et les prévisions des gains et pertes sur transactions en devises étrangères"? ("Report On The Calculation and Forecast of Foreign Currency Transactions", my translation. Richard, a francophone by birth, insisted on testifying in English.)
Evelyne: You say you never got this report. Why would he produce such a report if he wasn't asked?
Richard: Maybe somebody else did.
Evelyne: But you just said that he would not tell anyone how his system identified millions of dollars of unreported income every year?
Richard: That's what I said.
Evelyne: You claim you did not see this report; you claim that you and every other manager did not know how Mr. Payeur calculated the millions in gains on currency exchange transactions for almost three years?
Richard: Like I said, he would not tell us.
Evelyne: Still, you were willing to risk millions of taxpayer dollars that he could produce these reports using an adding machine after admitting that you and other managers did not have a clue as to how these reports were produced. How do you explain that?
Richard: We would not have risked anything if he had done the report as he was told.
Evelyne: Using an adding machine?
Richard: Like I said before, he did not need the computer; the new way was a better use of his time.
Evelyne: When he had access to the computer, did Mr. Payeur produce the Currency Fluctuation Reports on time and in the manner requested?
Evelyne: Why did you not simply give him access to the tools he had used in the past to prepare the reports when you realized that you were losing millions of dollars because he could not do them using only an adding machine?
Richard: Like I said before, he did not need access to the computers to produce the currency fluctuation reports. I already told you that, and it is all his fault if today we cannot keep track of millions of dollars. It's his fault for getting himself fired! Because he got himself fired, we had to dismantle the Currency Fluctuation Reporting System because nobody knew how to run it. We even hired a consultant for $90,000.00 so he could tell the consultant how the system worked before we fired him. (Remember this dialogue)
Evelyne: Did this consultant ever talk, or even meet with Mr. Payeur?
Richard: No, Bernard was supposed to tell Lee Gottdank what he knew and Lee would tell the consultant.
Evelyne: That was more efficient than having Mr. Payeur talk to the consultant directly?
Evelyne: Was Lee Gottdank familiar with the Currency Fluctuation System and that is why you chose him as go-between?
Richard: No; as I told you before, nobody knew how the system worked. Lee was the one I chose as the contact with Bernard so he could concentrate on his reports.
Evelyne: Was anyone else allowed to talk to Mr. Payeur?
Richard: NO! I wanted him to concentrate on his reports.
In the event that Thomas W. Brown was computer illiterate (it was not unusual at the time; the IBM Personal Computer, which would revolutionize the way we all worked, had only been introduced a few years earlier), Evelyne phrased most of her computer-related questions in terms that even he should have been able to understand.
Evelyne: The information that Mr. Payeur needed to do the currency fluctuation reports was in the department's computer, correct?
Evelyne: The same computer used by Mr. Payeur to do his reports before the department decided it was not needed?
Evelyne: A big computer like that is like a big filing cabinet, right?
Richard: Yes. I guess you could call it that.
Evelyne: Then, could you explain to me how he was to produce long complicated reports the Department considered vital, if he was denied access to the filling cabinet where the information he needed was kept?
Richard: We made other arrangements.
Evelyne: What kind of arrangements?
Richard: Bernard was to ask Lee Gottdank for the information he needed, and he would get it for him. He would give him the computer printouts of the information he needed to do his reports.
Evelyne: Would it have been more efficient to let Mr. Payeur get the information himself, or let the computer do all those millions of calculations as was done in the past?
Evelyne: You admit that the Currency Fluctuation Reporting System was a big complex system, a system so complex that no manager at Foreign Affairs could understand how it worked?
Evelyne: And you expected Mr. Payeur to recreate this system, to produce reports from this complicated system — using pen and paper and an adding machine — from memory?
Evelyne: UNBELIEVABLE! (I don't remember her saying this, but she must have been thinking it).
Evelyne: Mr. Payeur was required to sign in and out of his office?
Evelyne: Was anyone else on your staff required to sign in and out.
Evelyne: Why was he singled out?
Richard: I wanted to make sure he was working on our reports.
Evelyne: After you denied him access to all computers, you also changed his job description to say that his job did not require the use of computers?**
Richard: Like I said before, his job did not require the use of a computer.
Evelyne: A Financial Systems Analyst not requiring access to computer systems, ever. Isn't that unusual?
On the Appraisal From Hell
Evelyne: Isn't it true that when you invited Mr. Payeur to your office to give him his performance review [the Appraisal From Hell] you told him that if he accepted a transfer to another department you would tear it up?
Richard: That's not true.
Evelyne: Did you not tell him to use his previous good appraisal to transfer out of the department while he still could?
Richard: That's not true.
Evelyne: Didn't you tell him that if he did not leave, he would be fired for insubordination or fired for incompetence using this appraisal [the Appraisal From Hell]?
Richard: That's not true.
Evelyne: Such an appraisal is grounds for immediate dismissal for incompetence or incapacity isn't it?
Richard: I don't know.
Evelyne: If this appraisal was not going to be used to get rid of Mr. Payeur, why such an appraisal six months (it was four months) before his regular appraisal was due?
Richard: To get him to do his job.
Evelyne: Anyone with such an appraisal is obviously incapable of doing even the most menial tasks, let alone all the complex calculations required to do the currency fluctuation reports?
Richard: We thought that this appraisal [The Appraisal From Hell] would convince him that we were serious about getting our reports.
Evelyne: So what you're saying is that such a horrible appraisal is just the department's way of motivating employees?
Evelyne: To your knowledge, do you know of anyone else who received such an appraisal?
Richard: I don't know of anyone else.
What were all the Doctors of Law to do after more than three days of getting pummelled by this nonsensical testimony and other damning evidence? What Evelyne and I did not know was that the government lawyers had an ace up their sleeves—technically an illegal ace, but what does it matter when you are defending people who consider themselves above the law?
Foreign Affairs officials had shown themselves to be dismally ethically and morally bankrupt. The lawyers from Treasury Board tasked with defending Foreign Affairs' actions would prove that, when it came to unethical reprehensible behaviour, Foreign Affairs was not in a class by itself.
* Gordon admitted on the stand that this was his decision.
In cross-examination, Mr Gordon testified that ... he had discussed the question of 'tools', meaning the computerized equipment (only a computer illiterate would refer to a computer as computerized equipment which is equipment containing a computer), with the grievor and was convinced that the grievor did not need such equipment to do the work assigned.
Decision of Thomas W. Brown, p.53
** Even though the new job description bore my position number the position was shown as VACANT.