All About Information

On July 18th, British Columbia Arbitrator Colin Taylor dismissed a grievance about recording an interview with an employee who was the subject of investigation. He held that recording an interview (openly) did not violate the employee’s right to representation or any other collective agreement right.

There are mixed views about the wisdom of recording interviews, with some believing that recording has a negative effect on candor that outweighs its benefit.

Teck Coal (Fording River) and USW, Local 7884 (18 July 2011, Taylor).

Employers are now often confronted by employees who ask for help in addressing defamation linked in some way to their work responsibilities.

Employers do have a duty to provide a safe and harassment free workplace, but this is a very different concept than a duty to protect an employee’s reputation. I just stumbled across a Federal Court case issued in June in which Justice Zinn says the latter duty does not exist. He says:

I agree with the Attorney General that the Adjudicator expanded the duty of good faith beyond the parameters set out in Wallace. He created a new duty according to which an employer has a positive obligation to protect an employee’s reputation. Such a positive duty does not exist at common law, and no authority was provided by the Adjudicator in support of it. Requiring an employer to take certain positive actions in response to reports in the press which are alleged to damage the reputation of one of its employees does not fall within the Supreme Court’s determination in Wallace that an employer has an obligation “to be candid, reasonable, honest and forthright with their employees.”

More controversially, Justice Zinn suggests rather categorically that an employer can stop an employee from speaking out to clear his or her own name so it can speak to the media (about controversy caused by the employee) in its own single voice.

Canada (Attorney General) v. Tipple, 2011 FC 762 (CanLII).

I presented with Alex Cameron of Fasken’s today at the Association of Municipal Clerks and Treasurers of Ontario “Municipal Information Access & Privacy Forum.” Alex and I have done this privacy and litigation presentation together before, but today we were drawn into some good issues about municipal information governance by a very sophisticated audience.

For me, today’s light bulb was about how good information governance relies so heavily on separating electronic communications based on their purpose: ideally, work communications should flow separately from personal communications which should flow separately from “constituency communications” (for councilors).

The well known City of Ottawa decision – in which the Divisional Court held that personal e-mails are not subject to our provincial access legislation – is certainly liberating to public servants who are personal users (who isn’t?), but it invites a mixing of personal and work communications in a way that makes municipalities’ ability to govern communications more challenging. This recent municipal privacy case is an example of a governance breakdown related to a difficult to characterize e-mail, and was raised today in a manner that highlighted the difficulties with mixed flows.

One message today was that municipalities have to work very hard to assert their right to govern the mixed purpose communications on their systems. With employees, this has been done for years through acceptable use policies, such policies slowly evolving to be more express about management rights. As the discussion today highlighted, councilors cannot be so easily controlled, which lead some audience members to share great insight on what communication services to offer councilors and on what terms. I’m afraid I don’t a blueprint to recommend, but as I began, practices that encourage the separation of communications by purpose will result in great benefit.

Slides below.

On August 31st, Arbitrator Russel Goodfellow issued an order relating to the production of a grievor’s occupational health file before a pending arbitration hearing. In doing so, he opined as follows:

The employee – in taking on the employment relationship with Telus, in seeking benefits under the collective agreement that applies to her, in providing medical documents to Telus Health directly or through her health care providers, in tacitly agreeing to the collection and/or creation of such documents from and by others, and/or in seeking to enforce her statutory rights to accommodation – does not cede ultimate control or dominion over the documents or the information that they contain. The information remains, in a fundamental sense, hers: see eg. McInerney v. MacDonald, [1992] 2 S.C.R. 138. To paraphrase the Court, the fact that the individual may have chosen, or have even been required, to make personal information available to others in order to obtain certain benefits does not mean that she has abandoned her “basic and continuing interest in what happens to this information, and in controlling access to it.” The grievor retains fundamental control over this “highly private and personal” information that goes to her “personal integrity and autonomy”. The requirement of consent is real, it is not a matter of convenience or superstition, and there is no suggestion, for example, that the employee has somehow waived that requirement here…

Before leaving this issue, I would comment that it is unfortunate, but perhaps understandable in the light of the parties’ history, that this matter could not have been resolved on agreement. There is a rapidly developing convention, at least amongst large unionized employers in this province, which I wholeheartedly endorse. That convention is for the entire file to be requested by the union, just as the Union did here, with the consent of the grievor, sometimes from the Occupational Health Department of the employer (where that function is performed “in-house”) directly, and for “Occ.Health” to then hand over the file, in its entirety, to the union. Sometimes, though less often, it is the employer that initially seeks production of the file, and that request is typically made either by way of a request by the employer for the grievor’s consent or for an order from the arbitrator made to Occ. Health. Sometimes the two processes go hand in hand.

Though this framework has been endorsed by at least one other Ontario arbitrator, I question whether there is really such a convention and posit that most Ontario employers would take a similar position to that taken by the employer in this case – that an occupational health file is a company file that contains sensitive employee personal information and may be used (and accessed), pursuant to prior obtained consent, for the purpose its contents were collected.

Administering employee medical information in a special file, separate from other employee information, has an important security-related benefit; it creates a “privacy screen” to ensure that access to sensitive information is limited to the occupational health staff who require access for routine use. It should not preclude employer access for non-routine uses that are consistent with the purpose for establishing the file, including non-routine uses such as preparing for arbitration. If employers are required to obtain express consent to prior to accessing their own occupational health files for such a purpose, they face a greater restriction than health care providers face in accessing personal health information that is regulated by the Personal Health Information Protection Act. (See ss. 37(1)(h) and 41(1)(a).) This can’t be correct.

The stakes may be low in dealing with pre-hearing preparation and production (which is probably why some employers seek express consent), but other legitimate uses of occupational health files (such as workplace risk management) cannot be frustrated by a view that regards an important employer file as a locked box that can only be accessed by persons outside of the occupational health department with express employee consent. Arbitrators have been tempted to treat occupational health files as akin to a health care files, but such a conception can cause internal confusion, conflict between occupational health staff and line management and, in construction and heavy industry, can lead to deadly consequences.

Telus Inc v Telecommunications Workers Union, 2011 CanLII 57030 (ON LA).

[The views expressed are mine alone.]