Arbitrator says association has no right of access to harassment investigation reports

On July 15th, Arbitrator Sheehan held that a police association did not have a right of access to a harassment investigation report.

Arbitrator Sheehan held that the employer denied access for “reasonable cause” – the need to encourage witness candour – and therefore acted consistently with its collective agreement. He also dealt with the broader premise for the association’s case and, in doing so, questioned the a finding in which the OLRB held that a union’s representational role justified a similar right of access He said:

I have some difficulty with extrapolating the reasoning in those cases, as support for a much broader proposition that a union will necessarily be entitled to otherwise private/confidential information associated with a particular operational decision of an employer; simply on the basis that the information in question will be of assistance to the union to fulfill its duty of fair representation obligations. Or more particularly, that the union is entitled to such information on the basis it would be helpful to the union in assessing whether it would be appropriate, in the circumstances, to file a grievance.

There are numerous scenarios where the employer has information in its possession that may be quite helpful to the union, in terms of assessing whether there has been a violation of the collective agreement; and therefore, a basis to file a grievance. For example, in a job promotion dispute, the employer typically has information which may involve the confidential evaluations or interview/test results of the candidates. Such information would, obviously, be useful for the union to review in terms of whether in fact a grievance should be filed on behalf of a senior employee not awarded the position. In that sense, the union has an “interest” in the disclosure of the information. The duty of fair representation obligations resting on the union, however, does not transform that “interest” in obtaining the information into a “right” of disclosure, which would obligate the employer to comply with a request to disclose; solely to assist the union, in their assessment of whether there is a basis to file a grievance.

The disclosure of employer documentation arising out of a disciplinary investigation may likewise be of particular assistance to the union in terms of evaluating whether in fact there is a basis to assert a violation of the collective agreement.  Again, as has been previously discussed, if the request for the information should arise in the context of the adjudication of a grievance challenging the issued discipline, there would be a presumptive right (subject to a valid claim of privilege) for the union to obtain production of such arguably relevant documentation. It is, however, an entirely different proposition to suggest, that the employer prior to the filing of a grievance, is obligated to forward that information to the union; on the basis the information may be of assistance to the union, in its assessment of whether there is a basis for filing a grievance.

For similar reasoning see Arbitrator’s Lanyon’s decision in Mount Arrowsmith Teachers’ Association.

Halton Regional Police Services Board v Halton Regional Police Association, 2015 CanLII 47877 (ON LA).

ABQB finds grievance response privileged

On February 26th the Alberta Court of Queen’s Bench held that a grievance response is issued by an employer as part of the settlement process and is therefore privileged:

If these meetings are to be open in an attempt to resolve the grievance it seems clear that the discussions and documents flowing therefrom should remain confidential. The decision letter of April 30 is part of a settlement negotiation which falls within the protected category of settlement privilege and is not producible.

The Court denied production in a civil action brought by the grievor. The employer argues the subject matter of the action is within the exclusive jurisdiction of a labour arbitrator.

Thomson v University of Alberta, 2013 ABQB 128 (CanLII).

Alberta court finds that grievance response is privileged

On February 26 the Court of Queen’s Bench of Alberta held that an employer’s response to the first step meeting in a grievance procedure was subject to settlement privilege.

Communications made in a grievance meeting are customarily treated as subject to settlement privilege, but whether the privilege extends to an employer’s formal response to the meeting is questionable. Here, the Court treated the grievance response as part of the continuum of settlement communications. It said:

If these meetings are to be open in an attempt to resolve the grievance it seems clear that the discussions and documents flowing therefrom should remain confidential. The decision letter of April 30 is part of a settlement negotiation which falls within the protected category of settlement privilege and is not producible.

The Court also discussed the implied waiver doctrine and the principled exception to settlement privilege and found neither justified a production order in the circumstances.

Thomson v University of Alberta, 2013 ABQB 128 (CanLII).

Union defames hospital administrator by publishing grievance, no privilege

On March 1st the Saskatchewan Court of Appeal held that a union and its representatives defamed the director of a teaching hospital by publishing a grievance that alleged he became “an active part of the harassment himself” by his handling of a harassment complaint against others.

The Court accepted that a publication by a union made for the purpose of “fair representation” (including for the purpose of locating witnesses for a pending arbitration) might attract qualified privilege, but held that the union went too far in the circumstances “having regard for the manner of communication, the wording of the communications, their timing and to whom they were given.” In particular, the Court held that the union could not satisfy the “reciprocity of interests” element of the qualified privilege defence because it published the grievance on the open internet. It explained:

The trial judge did address the question of publishing in relation to the internet (at para. 78), but he dismissed this aspect of the complaint by finding in effect that the use of the internet is a fact of life. As Brown on Defamation states “[t]he use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information” (at 13.6(3)(d)(ii)(C), vol. 4). The internet is not a tool that can be used to expand qualified privilege so as to justify the broad publication of a defamatory statement, but rather it exacerbates the libel. In this case, it is common ground that the Union’s website was open to the public on the internet, without any access code protections or other privacy protections. Anyone with internet access could gain access to it. It is irrelevant, in my view, that Dr. Rubin did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication.

Also notably, the Court awarded $100,000 in general damages, which the court characterized as just shy of an amount that might be awarded for “extreme and egregious conduct.” It declined to award aggravated or punitive damages.

Rubin v Ross, 2013 SKCA 21 (CanLII).

Complaint challenging timidity of employer response to attack blog dismissed

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.).

Union does not get access to employer info for monitoring adherence to CA

On May 14th, Arbitrator Lanyon held that a union has no right to access employer records for the purpose of monitoring adherence to a collective agreement unless the right is contained in the collective agreement itself. He distinguished British Columbia and Ontario case law that establishes a right of access to bargaining unit member contact information that flows from a union’s representational rights, stating:

I conclude that the Millcroft and P. Suns lines of authority apply specifically to the provision of contact information; for example, the names and addresses of employees. However, these decisions cannot be read to compel an employer to provide information whose sole purpose is to assist the union in monitoring the terms and conditions of the collective agreement. Therefore, the B.C. Labour Relations Code does not compel employers to disclose documents whose whole purpose is to assist the union to monitor provisions of the collective agreement outside the grievance/arbitration procedure. If there is such an obligation on an Employer it must be found within the terms of the collective agreement.

In this case, Arbitrator Lanyon held a teachers’ federation had no right to information about occasional teacher assignments under its agreement with a school board. It’s not clear why this analysis was necessary, but Arbitrator Lanyon also held that individual privacy interests weighed against disclosure.

Mount Arrowsmith Teachers’ Association and School District 69 (Lanyon, 14 May 2012).