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Arbitrator orders $3,000 in privacy damages

18 Nov

On April 27th, Arbitrator Knopf ordered that $3,000 in damages be paid to a grievor for breach of privacy and harassment because:

  • the grievor’s personnel file contained an inexplicable notation that the grievor advised his supervisor that he injured his penis while cooking nude at home; and
  • the employer contacted the grievor’s doctor to confirm the doctor’s signature without justification and without consent.

Ms. Knopf said that these claims were “serious enough to warrant damages, buy they were not profoundly damaging to [the grievor’s] reputation or harmful to his privacy, nor did they have a negative impact on his benefit claims, status in the workplace or reputation in general.”

York (Regional Municipality) v Canadian Union of Public Employees, Local 905, 2017 CanLII 56454 (ON LA).

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Arbitrator awards privacy damages for implying an employee suffered from mental distress

31 Dec

On December 4th, Arbitrator Andrew Sims ordered the Edmonton Police Service to pay a grievor $5,000 in damages for breach of privacy.

The case arises out of the Service’s handling of an intense interpersonal conflict between the grievor, a police detective, and his staff sergeant. The conflict led to a formal review in which the reviewing investigator recommended the grievor’s transfer to a new unit due to interpersonal problems, the responsibility for which was borne by the grievor and others. Before the Service addressed the recommendation, however, the grievor and his staff sergeant had an altercation.

The altercation invited an immediate decision to pursue the recommended transfer. Although the formal review had raised no concerns about the grievor’s mental health, when superintendent met with the grievor to advise him of the transfer she became concerned about his mental health on account of his reaction.

The superintendent raised the need for a psychological assessment, which the grievor undertook grudgingly but voluntarily. While this assessment was pending the superintendent met with the department and implied that the grievor was mentally unwell, in essence conveying the same opinion that was the basis for the pending assessment. In the end, a psychologist determined the grievor was “psychologically intact and functional.”

Based on the following analysis, Arbitrator Sims ordered the Service to pay $5,000 in damages:

Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information.  To anticipate a diagnosis, based only on personal observations, however genuine the concerns,and to discuss that in public, is just as serious a breach of privacy.  Arrangements were underway to get the grievor assessed.  Implying anything as to his state of health pending that assessment was inappropriate and unnecessary. The decision was made to transfer the grievor based on the problems he was having with his Staff Sergeant and the Unit Review.  This was decided before the health concerns arose from the interview.  Given that, there was really no need to go into whether the grievor had health issues at all. The emphasis on the grievors “H.R. issues” had the effect of adding undue emphasis to the suggestion that the broader issues in the unit, which were serious in themselves, were due to the grievor’s health issues.  That too was unjustified given the more balanced assessment in the unit review itself.  The grievor’s reputation amongst his peers, his need and ability to interact with them in future, and his sense of employment security were all impacted by the excessive commentary during this meeting.  While I accept that the comments were made out of genuine (although to a significant degree unfounded) concern, they amounted to a breach of privacy and caused harm to the grievor’s privacy interests. Police officers are particularly dependent upon their reputation amongst their peers.  Any suggestion of mental problems or unreliability can seriously hurt their working relationships and their careers.  I find these breaches of privacy sufficiently serious to justify financial compensation which, based on a review of the authorities discussed above, I award at $5,000.

Edmonton Police Service v Edmonton Police Association, 2014 CanLII 73072 (AB GAA).

Ontario arbitrator upholds discharge for Facebook postings

26 Jul

On May 15th, Arbitrator Trachuk upheld the discharge of a short service crane operator for posting disparaging and sexually explicit comments about a female coworker on his Facebook. The decision is fact specific and not surprising. Arbitrator Trachuk, however, does make the following statement about admissions and apologies (in the context of a social media offence) that is sensible and of note:

The union asserts that the grievor’s apology is another mitigating factor. The grievor did apologize to the company in his first meeting and offered to apologize to X. An admission and an apology are not exactly the same thing. An admission after a person has already been caught is not worth much. The grievor’s offense was visible on his Facebook for many people to see for many hours. Therefore, admitting he had posted the comments was not the act of accountability that it would have been if he had come in and confessed before anyone had complained. However, a person may still be truly sorry after he is caught, although such apologies usually appear to be self-serving. That is why a grievor who wants to persuade an arbitrator about his sincerity will testify. This grievor did not. The grievor’s admission and apology can only be considered minor mitigating factors due to their timing and the grievor’s failure to testify.

United Steel Workers of America, Local 9548 and Tenaris Algoma Tubes Inc. (15 May 2014, Trachuk).

Complaint challenging timidity of employer response to attack blog dismissed

9 Feb

On January 22nd, the Ontario Grievance Settlement Board dismissed a group complaint alleging that an employer failed to respond appropriately to a union blog that attacked members of management.

Vice-Chair O’Neil heard the complaint. The following is her description of the content of the blog:

The more objectionable posts in evidence allege managerial corruption or negligence, such as never seeing inmates or having “screwed up” the previous attendance management program. Others insult managers in general, using terms such as useless, pathetic, vindictive, morons and misfits. Cartoons and comments referred to attendance management procedures and imposition of discipline as “kangaroo courts”. Suspensions for excessive use of force were referred to as attacks on people just trying to do their best, and it was suggested that the safety of the staff was never a concern. Mocking allusions to acquiescing to being strip searched were used to describe those in the union accused of lacking courage to take action against policies the blogger did not like. Staff who took acting assignments and worked overtime were criticized as siding with management, and managers who work significant amounts of overtime accused of having social problems. Pay for performance was characterized as bonuses for screwing up, and it was suggested that the superintendent and deputies would get a higher percentage of pay for performance the more short-staffed the institution was.

Some, but not all of the blog’s authors were identifiable. Nonetheless, the employer chose to take a measured approach to dealing with the blog and did not discipline any perpetrators. Instead, it authored a joint memo with the local union president that encouraged respectful conduct and issued its own warning letter to those responsible for the blog. The blog then became password-protected, which members of the targeted management group did not feel was an adequate resolution. They complained.

In dismissing the complaint, Vice-Chair O’Neil said the following about an employer’s duty to respond to workplace harassment:

In respect of providing a harassment-flee workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.

Vice-Chair O’Neil held that the employer did not fail to meet any specific requirement of the applicable policy and otherwise acted within its discretion.

Lee v Ontario (Ministry of CommunitySafety and Correctional Services), [2013] O.P.S.G.B.A. No. 1 (G.S.B.).