Case Report – OLRB holds that faculty union has right to harassment investigation decisions

The Ontario Labour Relations Board issued a decision on June 6th in which it held that a faculty union, as a certified bargaining agent, has a right of routine access to harassment investigation decisions in which either the complainant or respondent is a member. Vice-Chair Patrick Kenny held that the provision of this information was necessary to the union’s representational role:

Without providing an exhaustive list of the circumstances in which the trade union bargaining agent will reasonably require confidential information, the facts in this case give one circumstance in which the trade union is entitled to receive the information. It has a responsibility, with the University, to provide a harassment-free and to ensure a discrimination-free working environment. It is involved in responding to employees in its bargaining unit who have been subjected to harassment or discrimination such as would be described in the Notices of Decision. This is why it has a legal interest in receiving, and is entitled to, copies of the Notices of Decision.

I am persuaded, therefore, that LUFA’s request for copies of each Notice of Decision, is clearly grounded in section 70 of the Act. LUFA needs that information, which is disclosed as of right to the complainant, the respondent and the individual responsible for taking corrective action, for the purpose of deciding whether or not it ought to file grievances to protect the interests of individual bargaining unit members, the bargaining unit as a whole, and/or the trade union as an institutional party. Indeed, LUFA has filed grievances in the past with respect to issues arising from the results of investigations and conclusions reached in Notices of Decision under the Policy. Apart from any application of the Privacy Act, LUFA is entitled under section 70 to a copy of each Notice of Decision.

Vice-Chair Kenny held that individual consent was not necessary, that that records of harassment investigations involving faculty are excluded from the Freedom of Information and Protection of Privacy Act as employment-related and that, in any event, their disclosure to the union would be authorized as “required by law.”

Laurentian University Faculty Association v. Laurentian University, 2010 CanLII 32256 (ON L.R.B.).