Loading...
HomeMy WebLinkAbout2005-3130.Shipton.09-02-18 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2005-3130 UNION#2004-0337-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Shipton) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFOREVice-Chair Deborah J.D. Leighton FOR THE UNION Stephen Giles and Scott Andrews Grievance Officers Ontario Public Service Employees Union FOR THE EMPLOYER Nicholas Sapp Employee Relations Advisor Ministry of Children and Youth Services HEARING January 23, 2009. 2 Decision INTRODUCTION [1]Mr. Paul Shipton, a Youth Services Officer with the Ministry of Children and Youth, at the Brookside Youth Centre, grieved on December 30, 2004 that the employer lost his ?personal health/medical/attendance support program file.? Amongst other remedies, the grievor seeks to ?be compensated the amount of $500,000 or compensated the amount of $100,000, and to be pensioned immediately full rate of 90 factor with no reduction in benefits ?.? At the outset of the hearing, the parties agreed that I had the jurisdiction to deal with this matter and they asked that I issue a decision without written reasons, in accord with the provisions for expedited hearings under Article 22.16 of the collective agreement between the parties. The parties submitted written briefs and made oral submissions on January 24, 2009. [2]The employer and the union agreed to the following facts: i. The grievor had amassed a substantial medical file as a result of various WSIB medical and accommodation information provided to the Employer over his years as an employee of the provincial government. ii. It is estimated that the file was approximately 6 inches thick. iii. This medical file was in the care and control of a representative of the employer ? more specifically Mr. Comartin, Deputy Superintendent. These files were maintained and stored in Mr. Comartin?s office. iv. In late November 2004 the grievor?s medical file went missing. v. On December 9 & 10, 2004, Mr. Comartin informed the local union, the WSIB and the grievor (on the second day) that the file had gone missing. vi. On December 13, 2004, a meeting took place between the grievor, Mr. Comartin & the local union representative. At this meeting the grievor states he was advised that: a) The file had been missing for approximately 2 weeks and an extensive but unsuccessful search had been undertaken to locate it.. b) The area of search included the institution and Mr. Comartin?s car and home. c) The grievor indicated Mr. Comartin?s office was not secured and there was open and easy access to his office by anyone. d) Further, there were outside contractors working in the facility at the time the file went missing. e) Mr. Comartin does not know if the file was lost or stolen. f) Mr. Comartin indicated he now locks his door whenever he leaves his office. 3 vii. On the same day, the grievor met with Mr. Maguire, Superintendent. He questioned why this situation was not being treated more seriously and requested a meeting with the Regional Director, Mr. G. Tayles. viii. On December 23, 2004 (a full ten days later) there was a teleconference between Mr. Tayles, the grievor and his union representative. The grievor again noted his dissatisfaction with the process and indicated a more thorough investigation would be taking place if the file had been that of an inmate. ix. On January 11, 2005, the grievor was notified of Mr. Tayles decision not to conduct a further investigation by Superintendent Maguire. x. On January 17, 2005, the grievor wrote to the Assistant Deputy Minister Ms D. Newman. He provided a detailed account of the incident and requested she intercede in the matter. He copied the Ombudsman and the Privacy Commissioner. xi. On February 9, 2005, Ms Newman wrote to the grievor and noted that "as a result of this unfortunate incident a number of procedures have been reviewed and additional precautions implemented to address the management of files. UNION?S SUBMISSION [3]The union alleges that the disclosure of the grievor?s personal medical information by the employer either intentionally or unintentionally constitutes a violation of the collective agreement (health & safety, discrimination). It is the grievor?s view that the employer has breached the Public Service Act (PSA) (Oath of Secrecy), Freedom of Information & Protection of Privacy Act (FIPPA)& the Personal Health Information Privacy Act (PHIPA). [4]OPSEU concedes that employment records are exempt from FIPPA, and, in this case PHIPA. Further, OPSEU concedes that there was not a breach of the oath of secrecy under the PSA. However, there is an implicit understanding that the employer needs to use due diligence for the maintenance and control of the medical records of its employees. Counsel for the union maintained that the employer had a laissez-faire approach to the maintenance of the medical records at the time of the files disappearance. The failure to exercise due diligence in the proper care for the medical information is tantamount to negligence. The fact that the representative would leave such highly sensitive documentation in an unsecured location easily accessible to anyone walking by is a clear demonstration of this. Finally, the fact that the employer had to amend and augment its best practices for the care and storage of these medical files is further evidence that the practice that was in place at the time the file went missing was lacking. [5]The result of the employer?s action is to have created a work environment that is not safe for the grievor. He does not know who has seen or who has copies of his sensitive medical and personal information. Further, this has exposed him to the potential of identity theft; this is particularly true given his work environment. 4 EMPLOYER?S SUBMISSION [6]Counsel for the employer noted that issues of health and safety under the collective agreement may be addressed by the Board. However, the union must first show a violation of Health and Safety Regulations, and second must demonstrate that damages flow from that violation. [7] Counsel for the employer submitted that there is clear case law indicating that the union must not only show a violation of the collective agreement though a failure to follow regulations, but must also prove that the violation affected the grievor?s personal health and safety. As stated in Haynes & MCS GSB1246/89, at p. 7, ?the onus is on the Union to show that the grievor?s personal health and safety was affected by the Ministry?s failure to follow procedures.? Counsel argued further citing, Haynes, that the Board?s jurisdiction is not to enforce the regulations, but to ensure that the terms of the Collective Agreement are not violated. Therefore, the grievor has the onus to prove not only that breach of the regulations, but also that the breach also affected [his] health and safety. The union has failed to demonstrate an actual breach of Health and Safety Regulations. The union merely states that the grievor?s medical file is missing and speculates on circumstances that might create a health and safety risk. The union has speculated about possible threats to the grievor?s well-being, but has provided no evidence of actual loss. The union claims the workplace is unsafe for the grievor, but has no evidence of any threat. Counsel submitted that the union has failed to show that the grievor?s health and safety were affected by the alleged violation. Where the union cannot show loss or harm flowing from the alleged breach of the collective agreement, and where there is no documentation or evidence of harm beyond speculation, the employer submits that this grievance should be dismissed. [8]Counsel argued further that negligence occurs when a person or an entity, by either action or inaction, violates a standard of care owed to another person, and that other person suffers a reasonably foreseeable loss as a result. The fact that there has never been a missing file prior to the incident surrounding this grievance indicates that the employer?s old practices were reasonable. Given the unforeseeable nature of the incident, changing the employer?s practice is not an admission of guilt or past inadequacy, but rather is an attempt to prevent future problems. The employer submits that the union has not made out a case for negligence. There is no evidence relating to the disposition of the file, only that the file disappeared. [9]In summary, counsel for the employer submitted that the union had failed to show a breach of any health and safety regulation. The union had failed to provide any evidence that actions of the employer produced a real threat to the health and safety of the grievor. Further, the union failed to prove a breach of the employer?s duty of care to the grievor. Finally, the union produced no evidence of damage or loss because of the actions of the employer. 5 DECISION [10]As noted earlier, the parties agreed that I had the jurisdiction to deal with this matter and they asked that I issue a decision without written reasons, in accord with the provisions for expedited hearings under Article 22.16 of the collective agreement between the parties. Having carefully considered the written and oral submissions of the parties, and the jurisprudence of the Board, I must conclude that there is no evidence to support a finding that the employer has breached the collective agreement. Thus, I hereby dismiss this grievance. th Dated at Toronto this 18 day of February 2009. Deborah J.D. Leighton, Vice-Chair