HomeMy WebLinkAbout2009-0840.Group Grievance.14-11-10 DecisionCrown Employees
Grievance
Settlement Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2009-0840, 2010-2318,
UNION#2009-0582-0067, 2010-0252-0010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
Jane Letton
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING April 22, 2014
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Decision
[1] The grievance at issue is a group grievance that states: I/we grieve the Employer is in violation of, but not limited to, preamble, article 2 (management’s rights) of the collective agreement and any other act, regulation or policy pertaining to privacy. The Employer is also in violation of the Personal Health Information Protection Act and the Freedom of
Information and Protection of Privacy Act. The Employer electronically posted sensitive information of a private and confidential nature on the “P” (public) drive of the institution’s computer network, regard employee WSIB claims. The Union requests full disclosure to all affected staff under article 22.14.5 (grievance procedure). [2] By way of remedy the grievors request: Full redress to include, thorough investigation by an independent agency outside of the corrections division be conducted into this incident to ensure that further breaches of confidentiality have not occurred. A time frame to complete the investigation by outside agency. Full disclosure of results of investigation be made to the MERC Union Co-Chair, Local President and all affected staff members. Requirement that all computer workstations be equipped with privacy screens and be designed to afford reasonable privacy for all users. Financial compensation to be determined on a case by case basis. [3] The Union requested that this decision not include the names of any of the grievors involved in any of the grievances at issue and I have complied with that request. [4] At the outset of the hearing the Union informed the Board that it wanted to raise a preliminary motion requesting that this matter – and a Union grievance presently scheduled to be heard by another Vice Chair – to be consolidated with another matter before this Vice Chair. [5] According to the particulars provided, the Union grievance was filed after the local executive at a different institution discovered that a document containing “confidential medical information or information that would lead to a reasonable inference as to the nature of the accommodation” was posted on the P drive. [6] Union counsel for each of the two grievances were present at the hearing and fulsome arguments regarding the consolidation requests were offered. Additional written submissions were allowed. It is not necessary to set out those arguments in full at this time for reasons that will become quickly apparent.
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[7] Some background information is necessary in order to understand this matter. A portion of the pertinent history was set out in Re The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) & OPSEU, GSB#2010-2457 (Briggs). That decision noted:
• On February 5th, 2010, Vice Chair Keller issued a decision regarding the Attendance Support and Management Pilot Program, Re The Crown in Right of Ontario – Ministry of
Community Safety and Correctional Services and OPSEU (Benko
et al), GSB#2009-2821. At that point over eight hundred grievances had been filed many of which alleged that the program itself was a violation of the Collective Agreement and the Human Rights Code of Ontario.
• The decision contained a number of orders for the parties to assist in the prospective implementation of the program. Those orders included the need for the Employer to exercise reasonable discretion in dealing with non-culpable absences and to consider individual claims on a case by case basis. Further, it was ordered that the Employer shall preclude absences that are the result of a disability as defined under the
Ontario Human Right Code as well as absences resulting from proper consideration given to WSIB absences.
• The parties were directed to establish a dispute resolution mechanism to deal with the numerous outstanding grievances. This order was fulfilled and it was agreed that Vice Chair Keller and I would assist the parties in this regard. To allow for maximum efficiency, it was established that entire days would be set aside for the mediation/arbitration of these matters and that the Vice Chairs would attend at the workplace to facilitate necessary access to employee records.
• To date, there have been a handful of such days and the process appears to be working well because the vast majority of disputes that have been addressed have been resolved between the parties. As noted in Re The Crown in Right of
Ontario – MCSCS-OPSEU (November 28, 2011), GSB#2010-1825 (Keller), there have been some larger issues identified as being common to many disputes that have Province wide ramification. These matters are being addressed by the parties. [8] Following the issuance of that award the parties agreed to consolidate another grievance - GSB#2010-2457 – one that initially had been put before this Vice Chair in a local med/arb with GSB#2010-1825. Accordingly, Vice Chair Keller was to hear
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and determine both matters. At the suggestion of Vice Chair Keller, the parties met and engaged in a series of meetings wherein Vice Chair Keller, Vice Chair Leighton and myself attempted to mediate the outstanding issues. When it became apparent that the matters would not be resolved, the parties engaged in a number of conference calls in an effort to identify the areas of dispute and to agree on the process of litigation. These conference calls were attended by both Vice Chair Keller and myself. It is fair to say that there was much dispute as to the scope of the issues to be put before the Board flowing from these two grievances. On October 30th of 2010 Vice Chair Keller released a further decision for GSB#2010-1825 that stated:
• This matter has been the subject of a previous Board decision, written communication to the parties and four conference calls with counsel. This decision is to provide direction for how this matter is to proceed.
• The Board is satisfied that it has the necessary authority and therefore, can and will address the various issues raised in the grievance, all of which fall under the general heading of confidentiality with respect to how the ASMPP is interpreted and administered and how medical records are sought, maintained and used both corporately and within the various institutions.
• This general heading of confidentiality includes, but is not limited to, how and by whom employees are notified that they are on the program and its various steps; where meetings related to the ASMPP should be held; where and how medical records of individual employees are kept, maintained and stored; who has or should have access to those records; for what purpose may the records be used and by whom; what information regarding accommodation may be requested, and by whom; how and where information regarding accommodation is kept, maintained and store; who has or should have access to that information.
• In view of the above, the employer is not required to respond to the 31 questions as requested of it in the most recent conference call. Another conference call will be scheduled with counsel to determine how this matter will move forward from this point. [9] Following the issuance of the above decision Vice Chair Keller recused himself and the parties agreed that I would take jurisdiction of the matters flowing from these two grievances. A hearing date for GSB#2010-1825 and GSB#2010-2457 has been set for January 19, 2015.
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[10] It is against this backdrop that the Union requested the Group grievance and the Union grievance be consolidated with GSB#2010-1825 and GSB#2010-2457. The Union’s view is that there are similar matters of fact and/or law in dispute which, according to the Board’s Rules of Procedure, would allow this Board to consolidate the matters. [11] Put briefly, it was the Employer’s view that the facts and/or the law are dissimilar and, in any event, if such a request for consolidation is to be considered, it should be considered by the Board seated to hear GSB#2010-1825 and GSB#2010-2457, not this Board seated to hear the Group grievance. While it is obvious that the Vice Chair is the same on both matters, it would set a dangerous precedent for the Board to consolidate grievances with matters to be heard at some future date. [12] Whether or not the Employer is correct on this point, it is my view that it would be inappropriate for me to consolidate these matters at this point in time given that I have yet to have a formal day of hearing on GSB#2010-1825 and GSB#2010-2457. While Vice Chair Keller has set out the parameters of the issues to be put before the Board in those matters, the parties have not yet notified the Board as to any agreement on the questions to be posed. [13] I think it is fair to say that, broadly speaking – at the very least – the issue of confidentiality of information is at the fore in all of these matters. However, that similar subject matter does not, in and of itself, lead to a consolidation order. [14] Accordingly, this request for consolidation cannot be granted at this time. However, this order does not prejudice the Union in the event that it elects to raise this request for consolidation before the Board seated to hear GSB#2010-1825 and GSB#2010-2457. [15] I ask that the Registrar arrange a conference call with all counsel involved in the foreseeable future and prior to the January 19, 2015.
Dated at Toronto, Ontario this 10th day of November 2014.
Felicity D. Briggs, Vice-Chair