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HomeMy WebLinkAboutAnger 06-08-25 (;r~ ~0C1'S- owt-~- 000 \, In the Matter of an Arbitration Between: North Bay General Hospital and OPSEU In the Matter of the Termination Grievance of Anne Anger AWARD Before: Dana Randall For the Employer: Graham Clarke, Counsel Bernard Schaan Linda McCarthy For the Union: Will Presley, Grievance Officer Anne Anger Margaret Walters Joanne Groulx Peggy Burke A hearing in this matter was held in North Bay, Ontario on June 24, September 27 and November 9, 2005 , and January 31, April 13 and June 14, 2006. AWARD This is a termination case. Anne Anger, the Grievor, a short service, part-time, term employee, was terminated for working during an influenza outbreak at the Hospital without properly being innoculated against same. While she had gotten her flu shot, she failed to pick up and self-administer the prescription drug, Tamiflu, an antiviral that provides protection in the two week interval while the 'flu shot' is taking effect. In the Hospital's view, this was done knowingly and thus deceptively; it, was a clear breach of a notorious health and safety poliCY which needlessly put the health and safety of patients and other staff at risk and was further aggravated by the increased potential harm associated with the nature of her work: as a phlebotomist, she travelled throughout the Hospital taking blood. For the Hospital, her actions are properly characterized as a fundamental breach of the employment relationship. Given that, and her short service and employment status, termination was the appropriate response to her conduct. In the Union's view, the penalty is too harsh. The Grievor, a stressed out single mother of 3 who was, at the time of these events, holding down 3 jobs and working all available hours at each of them, simply forgot to pick up her prescription. While justly attracting discipline, her oversight does not warrant termination. While the issue of appropriate penalty was the main event, a secondary issue came to present itself as the more significant and challenging one. During it's cross-examination of Employer witnesses, OPSEU developed a breach of medical privilege case. The Union alleges that the Hospital's Occupational Health Services Department ("OHS"), which administers the Hospital's "Flu Shot" programme, breached subsection 63(2) of the Occupational Health and Safety Act, which is the statutory Iynchpin of medical privilege in Ontario, when it notified Management about the Grievor's unprotected status and participated in the investigation of same. The discussions the Grievor had with the nurses in OHS regarding both the flu shot and the need to take Tamiflu for 14 days afterwards were openly shared with the Hospital's discipline investigators and decision-makers. The information gained from the nurses became an important feature of the Hospital's investigation and helped ground its conclusions 1) that the Grievor had failed to take the Tamiflu and 2) that she had done it knowingly. The Union argues that this breach renders the discipline void ab initio; moreover, OPSEU seeks a damage award for the breach. The Hospital resists both the notion that any medical privilege has been breached and the expansion of the grievance to include the statutory argument and a claim for damages. II The case was heard over 6 days. The first day (June 24, 2005) was devoted to submissions respecting the production of the Grievor's medical records at the Hospital's Occupational Health Services Department. I mention that dispute at the outset because, for the Union, the care taken by Employer counsel, and by the parties generally, in safeguarding the Grievor's medical records during the hearing process belies and underscores the extent to which the Employer engaged in quite different conduct during its investigation of the Grievor's offence. I will return to that in due course. I heard from 5 witnesses. The Hospital called Bernard Schaan, the Grievor's Manager and the person primarily responsible for the termination decision; Linda McCarthy, an HR Generalist at the Hospital, who investigated the Grievors case and participated in the decision to terminate her employment; Clara O'Reilly, the Coordinator of the aforementionedOHS Department, and Lori Jean, an Occupational Health Nurse who works for Ms. O'Reilly. Both women had conversations with the Grievor about both the flu shot and Tamiflu and Ms. O'Reilly was the person who discovered that the Grievor had not picked up her Tamiflu prescription and reported it to Management. The Union responded with the evidence of the Grievor. Very little of the evidence is in dispute and where it is it is essentially a dispute over characterization. Leaving aside the issue of medical privilege, which I will address at the end of these reasons, the only issue between the parties is whether the Grievor deliberately or knowingly misled her Manager about her protected status or simply failed to attend to it and forgot. The Employer insists that it has clearly made out a case of the latter. Frankly, as will become clear in my reasons below, I am not sure it makes much difference to the result. Mr. Schaan provided the Grievorwith a detailed termination letter that sets out most of the issues clearly. Dated March 14,2005 it provides: As a follow-up to our meeting of March 10, 2005, this is to confirm the Hospital has completed its investigation into an allegation regarding whether or not you worked 2 during "influenza outbreaks" at the Hospital without having received the flu vaccine and the antiviral prophylasix (Tamiflu). You are hereby dismissed from employment effective immediately, due to your serious gross misconduct of deliberately not following through with the requirement, as outlined in the influenza Protocol. of receiving both the influenza vaccine and the drug (Tamiflu) and for subsequently working shifts on February 19th, 215\ 23/tt, 24th, and March 2nd, 3rd 2005. Our investigation shows that on February 18, 2005 you came into the Occupation Health Services Office. You received the flu vaccine on that day and you were advised by the Occupation Health Nurse that it would become effective after 14 days and in order to work during the outbreak you would require Tamiflu for those days you were scheduled to work. Initially you declined the Tamiflu and were advised to speak with your Manager. Bernard Schaan. I then advised you that due to staffing needs on that particular weekend, (February 19, 20. 2005) if you were to work you would have to take the Tamlflu. You then called the Occupation Health Service office and spoke with the Nurse, Lori Jean, who called the script to Dean's Pharmacy. It was discovered you had not received the Tamiflu when the Hospital was in receipt of the invoice from the Pharmacy on March 9, 2005. We therefore scheduled you to work in "influenza outbreak" areas because of the fact that you led us to believe you would be taking the Tamiflu. The work schedule clearly shows you were assigned to and worked in "influenza outbreak" areas on at least seven (7) occasions during the outbreak. The protocol requires that you not be assigned to the "influenza outbreak" areas. I would not have assigned you to these areas if you had been truthful about not receiving the medication. Upon investigation into your situation, you admitted that you had not picked up the drug during the initial investigation. You then presented to the Human Resources office following the meeting and advised Linda McCarthy that you had gone to Dean's Pharmacy on or about February 25, 2005 at which time the clerk advised you that there would be a cost of $78.00 which you could not afford. The fact was you were still in violation of the influenza protocol by worKing on the dates listed without having taken the medication. Mrs. McCarthy has since verified with Occupation Health that the nurse was very clear in her explanation to you that with all part-time staff, the Hospital will pay for the Tamiflu for the first two-week period and that that was all you would need since you had been vaccinated. She also advised you to bring the sheet of paper that would be attached to your prescription back to the Occupation Health Services office as proof that you did indeed pick up the drug. The nurse also noted that initially you had adamantly refused to take the drug until your manager advised you that you would not be able to work your shifts. As a worker in the Hospital, you have been made aware for months through verbal, electronic, and written information of the policy regarding the flu vaccination. Employees who choose to receive the flu vaccination have the option of either visiting their own doctor or receiving it in-house through Occupation Health Services. The basic Provincial protocol is that a staff member is not permitted to work in "influenza outbreak" areas without taking the flu vaccination, without exception. During the investigation you acknowledged that you were aware of this requirement. Your deliberate untruthfulness 3 created a health risk for you, your co-workers and the public;, (In fact, by not takin the drug, immunity would not have developed until March 4,2005 and yet you continued to work. ) Your status with the Hospital is that of relatively short-term employment (approx 6 months), with a clean disciplinary record. Notwithstanding, as a result of the findings that you deliberately did not follow through with protocol, I have lost all trust in your suitability to work at the Hospital. Any monies owed and a Record of Employment will be provided as required by no later than the required time period. The relevant facts are these. The Grievor was a short service employee who had the status of temporary, part-time. She had been hired to back-fill for an absent employee and barring her successful posting into another position, her contract of employment would have come to an end with the return of the absent employee, though there was no fixed date respecting the latter. The Grievor started on September 21,2004 and was terminated on March 14, 2005. She worked in Lab Services as a phlebotomist: the latter are trained in the taking of blood. In that capacity, she had occasion to travel throughout the Hospital taking as many as 75 blood samples a shift. As Mr. Schaan put it: "no other position or occupation visits as many patients and areas of the Hospital as a phlebotomist". Certainly, there can be no doubt that she was one of those rare employees who deal with a vast array of patients, both 'in patients' and 'out patients', and in all parts of the Hospital and thus she would be a dangerous potential vector in the spread of influenza, if not vaccinated against same. The Grievor was new both to the Hospital environment and to medical lab work. She had just put herself through college to become a phlebotomist at great personal sacrifice in the wake of marital breakdown. She had sole custody of 3 children, without financial support from her ex-husband, and was working every shift she could get at both the Hospital and at the other employers. She saw full- time employment at the Hospital as her salvation. There is also no doubt that during the period in question she was feeling all the stresses of being overworked and underappreciated. In the 6 weeks prior to these events, she worked every day but 6. The Hospital takes very seriously the issue of influenza and its impact on patients, on staff and on others. Patients in hospital are especially vulnerable to the flu because, for a host of reasons that need not be detailed, many are 4 immuno-compromised. Hospital patients, as we are frequently informed by the media, die of the flu. Because of that, and because hospital outbreaks are a virtual given, hospitals across the province make concerted efforts to limit the spread of the flu. They take part in a provincially mandated Protocol, which has been developed by the Ontario Hospital Association and the Ontario Medical Association and approved by the Ministry of Health. The Hospital's own Protocol, which was filed with me, need not be examined in detail, but underscores the importance and centrality of influenza control to its mandate as a health care provider. For our purposes, the following features of the Protocol relating to the protection of staff, will suffice. While employees are not required to get a flu shot, they are encouraged to and Ms. O'Reilly's OHS group carry out a Fall Campaign each year in advance of the flu season to inform and innoculate staff against the flu. The Hospital filed dozens of memos, emaits, posters, and records of countless 'inservices' carried out by OHS on a department by department basis for this purpose. Managers, like Mr. Schaan, further bring home the message in their own departments. The basic rules for staff, set out in the Protocol and frequently underscored in the materials and sessions outlined above, are as follows. As noted, while staff are not reqUired to get a flu shot, they are encouraged to and the evidence suggests that the overwhelming majority of Hospital staff get the shot. Those staff, who cannot take the shot because they are, for medical reasons, contra- indicated, have the option of taking the anti-viral Tamiflu as an alternative. Those employees, who can't take either or, for whatever reason, decide to take neither are unaffected until such time as an outbreak is declared by the Public Health Department in an area of the Hospital. At that point, employees not protected are prohibited from entering outbreak areas. An unprotected employee's schedule will be changed where possible; where it cannot be for operational reasons or where there is a 'total' or hospital-wide outbreak, the employee will not work. Contraindicated employees are entitled to a paid leave; refuseniks are put on unpaid leaves, with full time employees having the option of using banked vacation and lieu days. Those employees who, like the Grievor, have not taken the flu shoUn advance of declared outbreaks, but now opt for the flu shot in order to continue working, are also required to take Tamiflu for the 2 week period while the shot is taking effect. 5 The flu shot status of employees is considered confidential by OHS until such time as an outbreak is declared in the Hospital. Then OHS apparently feels duty-bound, pursuant to the Protocol, to advise Managers of the vaccine status of their employees so that the Managers can assign work and make the necessary scheduling adjustments, both to ensure that unprotected staff will not work in outbreak areas and to ensure that staff can be accommodated to the extent possible. The first outbreak in the Hospital in the 2004-2005 flu season was declared by the Public Health Department on January 7, 2005. Mr. Schaan was advised at that time of the vaccine status of the employees in his Department. It appears that the Grievor was amongst a group of 7 or 8 in a staff of 45 who had not been vaccinated. The limited nature of the outbreak - one ward in one of the Hospital's 2 sites - appears not to have spurred Mr. Schaan into action. However, on February 2,2005 OHS advised all Managers (and all staff) that the number of influenza cases in both the Hospital and the community were on the rise and that both sites now had outbreaks. The memo continues: Only those staff who have received the flu vaccine greater than 2 weeks ago, or who are protected with Tamiflu, are allowed to carry on activities on those units. This memo spurred Mr. Schaan into action. He updated his list and discovered that 6 staff, including the Grievor, remained unprotected and he spoke individually to each. He explained the rules as set out above. Two of the group were innoculated that day, a third indicated that she was contraindicated. The Grievor undertook to get a flu shot at an 'in service' scheduled for February 17, 2005. She did not. Mr. Schaan questioned her on February 18, 2005. He told her that she was scheduled to work the weekend, that there were numerous outbreak areas, and that her duties would require her to circulate in them. OHS revealed at the hearing (it is not clear whether this was revealed to Management before then) that the Grievor had attended OHS on January 27, 2005 to inquire about the flu vaccine. She indicated, at that time, that she didn't want to take the flu shot, but asked for more information about both the vaccine and the Protocol. OHS told her that she would not be allowed to work in outbreak areas if not protected. 6 " '" She attended again on February 18 after her conversation with Mr. Schaan. She received the flu shot but, according to the two nurses from OHS, "adamantly refused Tamiflu". She told the nurses that she would avoid areas that were off limits to the unprotected; (in effect, she was undertaking not to work in outbreak areas until March 4.) Ms. O'Reilly advised the Grievor that if she wanted to continue to work she would have to discuss that with Mr. Schaan, because only he could make staffing decisions. When the Grievor spoke to Mr. Schaan that day, he reiterated that if she wanted to work on the weekend, she would have to take Tamiflu because the shift required her to circulate in outbreak areas. The Grievor returned to OHS and had them write a prescription for the 2 week supply of Tamiflu. She advised Mr. Schaan of same; OHS also advised Mr. Schaan that she had attended their offices, received a prescription for Tamiflu and been given instructions on how to take it. On that basis, Mr. Schaan scheduled the Grievor to work the weekend and she worked numerous shifts in the period between February 18 and March 4, 2005. Furthermore, undisputed records indicate that she had occasion to take blood from 6 patients, on seven occasions, in restricted areas. It is also undisputed that restricted areas are very clearly posted as such. On March 4, 2005 Ms. O'Reilly was advised, by the Pharmacy that handled all its prescriptions, that the Grievor had never picked up hers. Ms. O'Reilly, clearly aghast at the notion that her system of controls could be so easily breached, upset that she had given the green light to an employee who had not met her side of the bargain, immediately called both Mr. Schaan and Ms. McCarthy. Both of the latter spoke to the Grievor and Ms. McCarthy instigated an investigation. The latter involved interviews with the Grievor, discussions with Mr. Schaan, several discussions with both Ms. O'Reilly and Ms. Jean of OHS and a discussion with the manager of the pharmacy. The Grievor admitted that she did not pickup or take the Tamiflu. While she took the position that she had not worked in restricted areas in the relevant period, there is no doubt that the contrary is the case. While the Grievor insists before me that she did not fail to take the Tamiflu deliberately. her reasons for not picking up the medication and taking it have not been consistent. It is unnecessary to set out her various explanations and their 7 timing_ It suffices to say that they include that she was simply too busy with the stresses of her life - working her jobs and raising her three children - to fill the prescription, to what she viewed as her best case: that she attended at the pharmacy a week late (and after she had worked unprotected in restricted areas) only to discover that she would have to pay the full cost of the medication: $78. She testified that this was at odds with what OHS had told her and, because she couldn't afford that amount, decided simply not to pick up the prescription. She advised no one of her dilemma. That version of events is vigorously challenged by the Hospital; it contends that only a modest deductible had to be paid, which was the normal practice. IV I share the Hospital's view that the Grievor's explanations are neither compelling nor satisfying. Even if I were to find that the pharmacy misled her respecting the cost of the medication - a fact, in my view, which the Union has not made out- she still would have been duty-bound, at that point, to advise OHS or the Employer of her dilemma. The obvious problem for the Grievor, in that scenario, was that she was already in clear violation of the Protocol. To the extent that I am to find that she simply did not attend because life was too overwhelming, Ms. McCarthy, when asked why the Hospital had "lost all trust" in the Grievor provided this full and compelling answer: the reason we thought it was so serious was that it was February. We had the challenge from both the community and internally...each morning, there were meetings with Managers, senior Administrators and infection control, specifically to deal with this issue. We had containment issues, staff who were sick....We had the problem of reassigning staff... Other facilities were reporting flu deaths. In our view, this was life or death. And we had a new employee who had been told not to work in areas of outbreak unless she had been vaccinated and taking Tamiflu and she put her personal situation before patient care. Those actions went to the core of our being: patient care. We can't risk immuno-sensitive people regardless of the circumstances of an employee.... Managers are very involved in the vaccine status of their staff; they are in close contact with Occupational Health, juggling assignments of individuals to determine who was safe in these areas. Bernard [Schaan] would not have assigned her to these areas if he was not convinced that she had picked up her Tamiflu. We have to trust that employees are following this fundamental rule. 8 As it turns out, the Hospital has had to move away from an honour system regarding an employee's protected status in the wake of the Grievor's actions. In my view, whether the Grievor's actions are characterized as due to forgetfulness or deliberate intent or as arising from some grey area in between is immaterial to the result. She worked in outbreak areas without achieving immunization status, knowing full well that she was not allowed to. That is a very serious offence and is properly characterized as a fundamental breach of her health care responsibilities. Given her extremely short service and her contract status, termination was) in my view, both an appropriate and just response. v That finding, however, does not end the matter given OPSEU's assertion that the Grievor's privacy rights respecting her medical information were breached by the Hospital. OPSEU relies on 55. 63(2) of Ontario's OHSA, which provides: No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute to a worker health record concerning a worker without the worker's written consent. Although the subsection is not often cited in arbitration circles, it is the foundation of much of Ontario's law on a worker's medical privilege. The general rule is that an employer is not allowed to seek, let alone gain, access to an employee's health record without the employee's written consent. There are two exceptions: 1) where a court or tribunal order authorizes production of relevant aspects of the health record for the fair adjudication of a matter and 2) another statute requires employer access in order for the employer to comply with that other statute's terms. The second does not arise in this case because the Employer is unable to point to any statutory duty that authorizes access. I will return to that issue below. While the first exception is also not applicable to these events, the Union relies on the process adopted by the parties and properly initiated by Mr. Clarke, at the outset of the hearing, to set in relief the extent to which the Hospital had not, in its view, complied with the subsection. In advance of the hearing, Mr. Clarke wrote me, in part, as follows: In preparation for the arbitration, I have requested consent from the grievor through her union representative for access to her medical records 9 at the North Bay General Hospital's Occupational Safety and Health Department. That department had discussions with the grievor with regard to a flu shot and the need to take medication called Tamiflu for fourteen days following the flu shot in order not to constitute a danger to NBGH patients. The first day of hearing was devoted to submissions and negotiations regarding that issue and I issued the following Order: Production Order I order and direct North Bay General Hospital's Occupational Safety and Health Department to produce the medical records of Anne Anger on the following terms: 1) A copy of the medical records will be made for Graham Clarke (Employer counsel) and Will Presley (Union Representative) this day; 2) Mr. Presley will review the records with Ms. Anger; 3) Mr. Clarke will review them with nurses in the Occupational Safety and Health Department and will be shared with Employer advisors only subject to the following; 4) Within 14 days, the Union will advise Mr. Clarke what in the file it views as not relevant to the flu shot and Tamiflu medication at issue in the proceeding; 5) Any disagreement with respect to the last will be resolved with the assistance of the Arbitrator; 6) Once agreement is reached respecting relevant documents, Employer counsel is free to share those documents with his Employer advisors and to produce same at hearing; irrelevant documents are to be immediately destroyed by Mr. Clarke and Mr. Presley; 7) The parties agree that all the remaining documents produced for the purposes of the hearing will be destroyed after the issuance of an Award in this matter. OPSEU says that the process adopted by Mr. Clarke, which was appropriate in 10 every respect, is in stark contrast to his client's own practices. As it turns out all the information produced at the hearing pursuant to the Order had been sought by Ms. McCarthy and/or divulged by the nurses in the OHS during the Employer's investigation of the Grievor. The facts relied upon by the Union, which arise entirely on cross-examination of the Employer witnesses and which are undisputed, fall into two categories: general Hospital practice regarding access to medical records and those specific to the Grievor. Both ground the Union's attack on what transpired in this case. The general facts are these: 1. The Hospital has a comprehensive 11 page "Corporate Privacy Policy for Personal Health Information" which carefully accords with 55. 63(2). The following extracts are particularly germane: Consent is required for the collection of personal health information and the subsequent use or disclosure of this information. Typically, NBGH will seek consent for the use or disclosure of the information at the time of collection. In certain circumstances, consent with respect to use or disclosure may be sought after the information has been collected but before use . . . Personal health information will not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. 2. OHS notes produced pursuant to the Order and filed as exhibits at the hearing identify discussions between the OHS nurses and the Grievor respecting the flu shot and Tamiflu as "confidential". 3. OHS treats an employee's immunization status as confidential until an outbreak is declared; then, however, OHS notifies all managers of the immunization status of employees. While the evidence is not clear whether the information provided is only with respect to an employee's fitness to work or includes more information, including whether an employee is contra-indicated, it is clear that, at least vis-a-vis the Grievor, numerous discussions ensued between OHS and Mr. Schaan respecting her immunization status. 4_ Ms- O'Reilly could point to no statutory authority for revealing an employee's immunization status; she was of the view, however, that achieving the goals of 11 the Protocol required Managers to have the information. Nor could she point to any statutory authority for her subsequent discussions with Ms. McCarthy during the disciplinary investigation. 5. OHS and the Hospital have no form or practice which seeks an employee's written consent for the release of any information respecting the flu vaccine, Tamiflu or general immunization status; a consent is signed at the time OHS gives the shot, but it is clearly a consent to having the vaccine and not to the release of any information regarding same. The specific facts and accompanying allegations are these: 1. Ms. O'Reilly communicated directly with Mr. Schaan about the Grievor's immunization status: about getting her shot and about getting a prescription for Tamiflu. There was no written consent authorizing that communication and, as Mr. Presley notes, there could easily have been a written consent form or a different procedure which simply required the employee to provide written proof to the Manager of her immunization fitness; (hand delivering a certificate from OHS would meet the arbitral standard). This, it is submitted, is a breach of the Grievor's medical privilege. 2. When Ms. O'Reilly was advised by the pharmacy that the Grievor had not picked up her prescription, she called both Mr. Schaan and Ms. McCarthy. She did not notify her patient of the revelation. The discovery was made after the two week waiting period for the flu shot to take effect had expired. As a result, because the Grievor was now fully immunized, OPSEU submits that the Hospital cannot argue that the Grievor was an imminent health threat or an ongoing health concern. The Union further submits that the only purpose, therefore, in contacting the Employer (and Mr Presley argues that her decision to call Ms McCarthy of Human Resources underscores the claim) was punitive or disciplinary. OPSEU submits that this was a further breach of the Grievor's medical privilege. Because the Grievor was a patient of OHS, Ms. O'Reilly had an obligation to speak to her first and seek her consent to disclose the information to the Employer. While OPSEU does not provide an answer to what would happen in the event that the Grievor refused such consent, the submission is that the integrity and independence of the OHS system is dependent, at a minimum, on this step. It became clear, during cross- examination of Ms. O'Reilly, that OHS did not even consider that as an option. 3. The Union argues, in the alternative, that even if I am not satisfied that any of the above is a breach of the Act and of the Grievor's medical privilege and 12 privacy rights, that what transpired subsequently is a clear breach and calls into question the integrity of the OHS system. OHS continued to provide more information, including their views both about the Grievor's attitudes towards Tamiflu, which was ultimately used to question the Grievor's credibility, and about how egregious the Grievor's failure to fill the prescription had been. Specifically, even though Ms. O'Reilly had already told Ms. McCarthy that the Grievor had had her flu shot and been advised that she must take the Tamiflu or she would not be allowed to work her shifts on February 19 and 20, which, in the Union's view, is everything Ms. McCarthy needed in order to take action respecting any health and safety issues, Ms. McCarthy initiated an email exchange with Ms. O'Reilly on March 9, 2005 in order to get more information "for investigative purposes". In response, Ms. O'Reilly happily reiterates what has already been shared and provides several more details, including that the Grievor had initially declined the Tamiflu. Subsequently, Ms. McCarthy calls Ms. Jean to get her version of events, and Ms. Jean provides further details and opines that the Grievor had initially "adamantly declined" to take the Tamiflu. Ms. O'Reilly, apparently overhearing that conversation, and not satisfied that Ms. Jean had sufficiently expressed their shared outrage at the Grievor's conduct, called Ms. McCarthy again on March 10 to stress her view of the seriousness of the situation and to dismiss the Grievor's version of events. At no point did the Hospital seek the Grievor's consent, written or otherwise, before having these conversations. It appears that Ms. McCarthy raised the issue of privilege with Ms. O'Reilly at some stage, but the latter did not consider it an issue. VI OPSEU characterizes this alleged breach of ss. 63(2) of the Act as the preeminent issue in the case. Relying on the Ministry of Labour's published guidelines on the breadth of the privilege, in part to underscore the importance of medical confidentiality in the provincial scheme, OPSEU suggests that the facts of this case bring the OHS at the Hospital into disrepute. 'If its breaking down for a public institution, let alone a hospital', Mr Presley asks, 'what message is being sent to smaller, private sector employers who rely on Occupational Health departments?' Mr. Presley constructs his legal argument around several sources of authority. He relies on the host of cases which recognize the importance of employee privacy rights (see especially the summary in Prestressed Systems Inc. And 13 L..I.U.N.A., Loca/625 (Roberts) 137 L.A.C. (4th) 193 (Lynk); on Arbitrator Vickers remark in Re Doman Forest Products Ltd. And IWA, Local 1-357} 13 L.A.C. (41h), where, in the context of a preliminary argument on surveillance evidence, he opines at p. 281 :"1 do not think it would be open for me to countenance disciplinary action against an employee in circumstances where the company may have offended privacy rights"; and on law relating to Union representation clauses and disciplinary notice cases which render discipline, in breach of such clauses, void ab initio. On either the video surveillance, suppression of evidence model or the Union representation, void ab initio one, OPSEU submits that the discipline cannot stand. The Union proposes that the line for the violation can be drawn anywhere from OHS's apparently general practice of communicating with Managers about the immunization status of employees, to the unrestrained participation of OHS in Ms. McCarthy's disciplinary investigation of the Grievor. In any case and wherever the line is drawn, the result should be the same: the discipline should be rendered void ab initio. As a result, the Grievor should be reinstated to her position and compensated for all losses, including her lost opportunity to have posted into full time employment in the interim. In addition, OPSEU seeks an award of aggravated damages for the Employer's violation of the law and infringement of the Grievor's privacy rights. It is submitted that this amount should reflect that, when the issue of broadening the grievance to include privacy issues was first formally raised in January 2006, the Employer responded that the Grievor's position might well be used to demonstrate that she "has shown no remorse and should never be reinstated" . Finally, the Union seeks an award of punitive damages because, it alleges, this was a flagrant violation of the law and the Grievor's privacy rights, without remorse or admission. As a result, the Union submits that all of its members are at risk of the mishandling of their medical information. It is important that the Employer get a clear message because the hearing itself has had no effect. The Employer is blithely still unaware that it erred and has taken no corrective action; because of that, Mr. Presley submits that I should use a heavy hand in the awarding of damages. The Employer makes numerous submissions in response. Essentially, Mr. Clarke makes a procedural argument and a substantive one. He submits that 14 :-: . .. :-: -:. the Union is attempting to plead a case that is not before me, not just because it is not part of the grievance, but because the facts do not support the argument. The procedural argument - that this is an expansion of the grievance, which, in order to be entertained, requires an amendment, which, because being sought so late in the proceeding, should not be countenanced - will be dealt with in the next section. On the substantive argument, Mr. Clarke submits that context is everything. This is not a case where the Employer sought access to the Grievor's health records; so not one in which the scope of ss. 63(2) is properly before me. Rather, it is about the Grievor voluntarily participating in the influenza programme in order to establish her fitness to work. Mr. Clarke submits that it is akin to an accommodation case. The Grievor has sought a benefit - the right to work during an outbreak - in exchange for participation in the programme. Like an accommodation case, there are positive duties on all of the parties; if an employee wants to be accommodated, she needs to cooperate and share health information. If she chooses not to, which is her right respecting her health information, the employer, as the case law makes clear, can take the position that it cannot accommodate the employee in a vacuum and the obligation to accommodate comes to an end. Similarly, the Grievor could have said no to participation in the programme, to the flu shot, and/or to the sharing of information regarding her immunization status. There is no requirement to participate; it is voluntary. But the decision not to participate has a consequence and the Grievor wanted to work the shifts on the coming weekend. So she participated and received the green light to work. Analogizing it to a classic estoppel, she represented, by her participation, that OHS could disclose to her Manager that she had fulfilled the requirements and that she could be scheduled to work. This was consent to the use and disclosure of the information for the purpose of establishing her fitness to work and there was nothing in its use and disclosure inconsistent with that purpose. Counsel characterizes the Union's position as inconsistent and unfair. The information can be shared in order to allow the Grievor to work, but cannot be referred to when OHS discovers that the Grievor has not picked up her prescription. It is an attempt, retroactively, to erect the original right, which was essentially waived by her participation in the programme, in order to hide her wrong-doing and dishonesty with respect to her part of the bargain. The Employer says that when OHS learns that the employee has not upheld her part of the bargain, it can advise management that the green light had been given in 15 error. Mr. Clarke also challenges the notion that any of the information shared can be characterized as confidential. First, he submits that the information exchanged was no different for the Grievor than for any other employee and secondly, that while the Grievor's interactions with the nurses took place during a visit to OHS, as numerous other employees might well have, it is no different than the information that was openly exchanged with other employees who received their shots in public sessions and in-services. VII On the issue of the proper scope of the grievance, the facts are these. The grievance, filed on March 11, 2005, alleges that the Grievor "was unjustly dismissed" and seeks "reinstatement of position with full retro". No mention is made of a breach of privacy rights or of the statute. Certainly, there are no damages sought for these alleged violations. At the commencement of the hearing day on January 31 , 2006 Mr. Presley advised that the Union intended to pursue the violation of the Grievor's privacy rights, both as a defence to the allegations against her and as a basis for the seeking of damages. These legal issues had crystallized, in his submission, on the last day of hearing when Ms. O'Reilly had made a host of admissions, including her acknowledgement that there was no statutory authority to justify her participation in revealing information about the Grievor's health status. Mr. Clarke objected that this was an amendment to the grievance and one that should not be entertained given how late it was being brought. I directed that we would deal with the issue in final argument. At that time, the parties made full and comprehensive argument on the issue of the scope of the grievance and the extent to which an amendment was required in order to plead the privacy issue, the breach of the statute, and the seeking of damages for same. Both parties relied on numerous authorities in support of their respective positions. The preponderance of arbitral opinion is that it is inappropriate to take either a too technical or overly rigid approach to the grievance document. It is drafted early, under strict time-limits and without the benefit of a specialist. This approach ensures that the real issues between the parties are addressed and 16 not defeated by alleged technical difficulties. It is also consistent with an essential feature of sound labour relation's policy and one of the principles underlying the Supreme Court of Canada's decision in Weber. enabling all aspects of a dispute to be dealt with in one proceeding. Obviously, while the grievance should be construed liberally, the Union is not allowed to argue a whole new matter, and certainly not one requiring an entirely different factual foundation. 'We can't be left with', in the words of arbitrator Goodfellow (see Cold Spring Farms Ltd. and Cold Springs Farms Employees' Assn., Locel100 (2000),88 L.A.C. (4th) 213 at 222) an attempt by the Union to expand the original grievance to include both legal and factual issues that were not raised previously and that would, jf allowed, support an independent breach of the collective agreement and provide an entirely separate basis for relief. While the distinction needs to be made on a case by case basis, the following test articulated by arbitrator Abramsky in Re Canac Kitchens Ltd. And C.J.A., Local 1072 (1996),58 L.A.C. (4th) 222 at 238 is helpful: Consequently, under the cases cited it seems clear that a liberal as opposed to technical reading of grievances is required and that new arguments, and at times, new issues, may be raised. But there must be a tie to the original grievance. or, as counsel for the union so eloquently phrased it, the issue must be "encompassed in and flow naturally from what is expressed in the grievances." The corollary to that, of course, is that if an issue is a distinct, substantively new issue that may not be reasonably viewed as encompassed in and as flowing naturally from the grievance, and was never addressed during the grievance process, it would not be arbitrable. [Emphasis in originaL] Latitude in construing the scope of the grievance and, where necessary, granting an amendment to same, needs to be tempered with considerations of surprise and prejudice. It is one thing to interpret a grievance liberally in the wake of and in accordance with broad discussions during the grievance procedure and another to do that in the middle of the arbitration. The latter denies the other party the right to investigate the claim and to make an informed and timely offer to settle. Informed by these principles and the somewhat unique circumstances of this case, I am allowing the Union's 'amendment'. This is a termination case. The 17 Grievor has alleged that she has been "unjustly dismissed". In the normal course, arbitrators construe the allegation broadly and insist that employers meet their procedural and substantive burden: is there convincing (and untainted) evidence proving culpability, have all procedural requirements - contractual notice, representation rights, reliance on the proper record - been met, is the penalty appropriate, given a host of factors, including discriminatory treatment? These are all elements which flow naturally from the allegation of an unjust dismissal and, subject to issues of prejudice and waiver, need not be pleaded specifically. They are all part of the standard panoply of defences to a termination. In my view, the alleged breach of the Grievor's medical privilege, whether founded on the statute or not, is such a defence and is "encompassed or flows naturally" from the assertion that she was "dismissed unjustly". As Mr. Presley argues, "it is not an attempt to change the statement of the grievance because the illegal information sharing is directly implicated in the unjust dismissal and the cause of it". While' don't fully adopt that characterization, the point is well made. That the foundation for the assertion arises out of relevant cross- examination of the Employer's witnesses underscores the point and confirms that the factual basis for the claim is the same. Having let the breach of privacy assertion in as a shield, the issue becomes whether to allow the Union to proceed with it as a sword and seek damages on the Grievor's behalf. In my view, that is an appropriate amendment. While the relief sought in the grievance does not specify damages, I agree with the Union that the claim only crystalized when Ms. O'Reilly testified, both about the information that was shared and the lack of statutory authority justifying same. At that point, the Union immediately put the Employer on notice. In my view, the standard assessment of prejudice and/or waiver does not apply in these circumstances. However, forcing the Grievor, a terminated employee, to file a separate claim for damages, in these circumstances, would be extremely prejudicial to her. One can easily foresee the practical and legal hurdles to arbitrability. It would also completely undermine the principle of dealing with all aspects of a dispute in one proceeding. Having said all that, this is not, as Mr. Clarke protests, a policy grievance. If the Union has a grievance respecting the Hospital's Protocol, the potential conflicts which arise as a result of its being administered by OHS, and the legality of OHS's handling of medical information, then the proper procedure for the resolution or adjudication of those issues is initiated by the filing of a policy grievance. This case is not that policy grievance and my discussion and limited 18 remedy below reflects that view. VIII The privileged nature of personal health information is a fundamental concept in Ontario law. The Regulated Health Professions Act, 1991 places obligations on health professionals to protect the privacy of patient health records. There are common law obligations. The concept is enshrined, for workers, in the OHSA; enshrined for patients in, amongst other places, Regulation 965 made under the Public Hospital's Act (see sections 19-22). I mention the latter because "the Influenza Surveillance Protocol for Ontario Hospitals" purports, on its face, "to meet the requirements of the Public Hospitals Act 1990, Revised Statutes of Ontario, Regulation 965", Rather than founding an exemption to the strict rules respecting disclosure, the regulatory scheme reinforces them. The Hospital's own policies, as noted above, underscore the same principle. Occupational Health nurses are health professionals, who have privileged access to personal health information. Though employed by the Employer, when they give care to an employee and/or are in receipt of personal health information respecting an employee, they are duty-bound not to disclose that information to the Employer or its representatives, absent written consent (or a Court or tribunal order or other statutory duty). Employer counsel, before speaking to the OHS nurses, acknowledged the importance of the principle and acted appropriately by seeking an order at the outset of this proceeding. OHS nurses, as employees of the Employer, have to be particularly careful in this regard because the guarantee of confidentiality is fundamental to a successful occupational health service. As the Ministry's "Health and Safety Guidelines respecting 'Confidentiality of Worker Health Records'" notes: 'without this trust, frank and honest communication between a worker and the health professional will not take place and the assessment and care of employees will be compromised'. I agree with Mr. Presley that this difficult position for OHS is compounded in this case by their dual role as administrators of the influenza Protocol and as health professionals with privileged access to health information. It is clear to me that neither the Hospital nor OHS has properly turned its mind to the difficult position this dual role creates respecting the release of health information. In my view, the Union has an arguable case that the Hospital was in technical breach of 55. 63(2) of OHSA from the moment it first released to Mr. Schaan 19 information about the Grievor's immune status (or fitness). In the absence of written consent or statutory authority, OHS converted that information - which Ms. O'Reilly acknowledged it treated as confidential health information until an outbreak was declared - into information which needed to be shared with managers. While this is an eminently reasonable view or strategy to take given safe staffing imperatives, it does not square with statutory requirements and begs the question why participation in the Protocol does not include a simple written consent from the employee that the information can be shared with managers in accordance with the Protocol's requirements. But this Hospital-wide practice is not properly the subject matter of this grievance, as I noted above; nor, in my view, do I need to decide it for the purposes of resolving the matter which is before me. Respecting the latter, even if the early information sharing is a breach of the statutory requirement and one which implicates Ms. O'Reilly's initial calls to management notifying them that the Grievor had failed to pick up the Tamiflu, it would not persuade me to exercise my discretion to either suppress the evidence or to render the Employer's disciplinary action void ab initio. There are a host of reasons for that view. First, the Union was unable to provide me with any legal precedent on point. Rather, Mr. Presley was forced to reason by analogy from two lines of cases which, in my view, are clearly distinguishable. The procedural defect I void ab initio line is a special subset of cases dealing with Employer failures to exercise disciplinary powers according to contractual requirements and I am not persuaded that it is applicable to an alleged breach of a collateral statute and an implied term of the contract. And the video surveillance / suppression of evidence cases, which promote the notions of balancing of interests and reasonable privacy intrusions, does not help the Union. This last observation leads to my second point. If there was a statutory breach, it was a technical one only. While there was no written consent, there was certainly, as Mr. Clarke submits, consent by word and action. The Grievor knew that her fitness status was being shared by management; she shared it herself; it was the purpose of her participation in the Protocol. OHS's actions, up to and including the calls to management to inform them that the Grievor had not picked up her prescription, were reasonable in all the circumstances; the information shared was not intrusive and none of this information sharing. to use Mr. Presley's language, "brought the practices of OHS into disrepute". 20 Thirdly, given my view of the main issue in the case, which is informed in part by my view that the Grievor had an obligation and a positive duty to inform the Employer of her condition, I find that it would be entirely unreasonable to tamper with or roll back the discipline given that this alleged breach, put at its highest, is a technical one only. On the other hand, what happens in the wake of Ms. O'Reilly's having contacted management about the Grievor's failure to pick up her prescription, is an actionable matter. The various exchanges between OHS and Ms. McCarthy during the latter's investigation of the Grievor's misconduct are a repeated breach not only of the technical letter of the regulatory premise, but its spirit as well. While OHS are not expected to be advocates for their employee-patients, the Grievor could reasonably expect that her personal attitudes towards the flu shot and Tamiflu, would not be shared with the Employer as part of a disciplinary investigation. I agree that this conduct brought the OHS's role at the Hospital into disrepute and affects the integrity and viability of an independent occupational health service. The only remedy for this breach, given my view that the suppression of this impugned evidence, would have no impact on the disposition of the Grievor's termination - because it postdates her acknowledgement of her culpability - is a modest damage award. I note that the parties agreed, at the outset of the hearing, that the issue of any remedy for the Griever, in the event that she successfully overturned her termination, would be bi-furcated. The Union's final submissions on damages appeared to be informed by that notion. In my view, however, the Grievor has not been successful in the main action. I am sustaining her termination and see no need to re-convene the hearing to hear submissions on the quantum of damages. Mr. Presley made detailed submissions on the various heads of damages to be considered and the rationales for each. Neither party is prejudiced by my fixing them now without further submissions. I set the Griever's damages at $750. This amount reflects the need to underscore the importance of maintaining the integrity of the OHS system. The Grievor was entitled to the assurance that OHS nurses would not actively engage in informational exchanges with managers which revealed personal health information, especially in the context of a disciplinary investigation. Leaving aside the thorny issue of whether mere fitness is privileged, I have no doubt that Ms. Anger's discussions with the nurses, which reveal her personal attitudes to the taking of the flu shot and anti-viral medication, are privileged communications, and need to be strictly safeguarded to ensure the integrity of the system. 21 To the extent that the objective is to "punish" the Hospital, and not to compensate Ms. Anger, whose mental distress as a result of the breach is, if evident at all, negligible, the damages are best characterized as punitive rather than aggravated. While I would not characterize the Employer's misconduct as "malicious, oppressive and high-handed", it was careless in circumstances where a high standard of care is expected. That it took place in a hospital setting and that none of the Employer witnesses acknowledged the concern, let alone showed remorse, for the mishandling of these matters, suggests that a mere declaration to that effect is not sufficient. The damage award, though modest, will attract necessary attention to these issues. IX For all these reasons the termination of the Grievor is sustained. She is, however, awarded $750 in damages for the mishandling of her personal health records. DATED AT BARRIE, ONTARIO THIS 25TH DAY OF AUGUST, 2006. ~'1~~~ Dana Randall, Arbitrator 22