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HomeMy WebLinkAbout1995-0131LATIMER99_06_09 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 0131/95,0132/95,2132/95 OPSEU # 95A500-501 96C063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Noella LatImer) Grievor - and - The Crown III RIght of Ontano (Mimstry of the SolIcItor General and CorrectIonal ServIces) I Employer i BEFORE Susan D Kaufman VIce Chair FOR THE Nelson Roland GRIEVOR Counsel Nelson J Roland Bamsters & SolIcItors ..... FOR THE GIselle Basanta EMPLOYER Staff RelatIOns Officer -- Mimstry of the SolIcItor General and CorrectIOnal ServIces HEARING May 25, 1998 : SECOND INTERIM RULING On August 6, 1997, the partIes sIgned a document whIch provIdes as follows CONSENT ORDER Noella LatImer CorrectIOnal Officer 2 - Sudbury Jail ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Umon) and THE CROWN IN RIGHT OF ONTARIO (Mimstry of the SoliCItor General and CorrectIOnal ServIces) (The MInIStry) In the matter of eIght (8) gnevances filed by N LatImer, the parties agree to the follOWIng wIthout precedent and without prejudice to any future and/or sImIlar matter on the follOWIng terms - I The gnevor wIll be placed on a leave of absence wItnpay-for a penod of one month effectIve from the date that the gnevor was removed from the payroll provIded that the gnevor cooperate wIth the mandatory medical process as requested by the Employer scheduled for July 31 1997 2. However If PART B of the form entItled "Request for Health InformatIOn on Employee's FunctIOnal AbIlIties" IdentIfies that the gnevor can be accommodated by management ill the workplace wIthIn the leave penod mentIOned In paragraph 1, the gnevor wIll return to modified work. 3 If the gnevor is accepted for L TIP by the Insurance camer the gnevor agrees to repay any momes advanced to her dunng the leave penod mentIOned In paragraph I 4 A letter wIll be sent by the Employer to Dr McMullen, copy to N Roland remIndIng Dr McMullen I - a) that wIth respect to PART B of the form, to refraIn from statIng the gnevor s dIagnosIs and the specIfic name of any medIcatIOn the gnevor may be reCeIVIng as thIS may Imply a dIagnosIs b) and requestIng that Dr McMullen mail PART B of the form addressed to the Supenntendent R. Chenard markIng the envelope "Personal and ConfidentIal - to be opened by Supenntendent R. Chenard only" 5 WIth respect to the secuntv of PART B of the form. a) PART B of the form shall remaIn under lock and key and kept In the secure posseSSIOn of Supenntendent R. Chenard for hIs eyes only b) the InfOrmatIOn contaIned In PART B of the form IS to be used by Mr Chenard solely for the purpose of deVISIng a workplace accommodatIOn plan for the gnevor If such an arrangement IS appropnate c) Such plan wIll be devIsed by Mr Chenard In consultatIOn wIth Human Resources staff and Implemented In consultatIOn wIth the management staff at the Sudbury ~ JaIl ~ 6 A copy of Dr McMullen s consultatIOn report to Dr Humphnes IncludIng PART B of the form, and any other documents created by Dr McMullen wIll be forwarded to the Umon by Dr McMullen upon hIs receIpt of a release and dIrectIOn executed by the gnevor or by the emplover i 7 Dr McMullen s consultatIOn report and all other documents relatIng to the mandatory , , i , f medIcal are to be forwarded by hIm to Dr Humphnes only and WIth the exceptIOn of ( ~ [ PART B of the form wIll remaIn In Dr Humphnes possessIOn and control and not be f I used by anyone else r r r Dated thIS 6th day of August, 1997 t ! r ! Nelson Roland GIselle Basanta f l f For the Umon F or the MImstry ! F f f ! 1 , ! ! 2 f I t The heanng of the eVIdence pertammg to nme gnevances filed by the Gnevor had not been completed, when, on May 25 1998, the partIes agreed that I should hear eVIdence as to whether the above-noted 'Consent Order" had been breached. Smce then, the partIes have been engaged m dISCUSSIOns and medIatIOn/arbItratIOn, WhICh dId not resolve the dIfferences between them Recently, the Dmon requested that before the resumptIOn of the heanng, an llltenm decIsIOn be Issued regardmg the eVIdence presented on May 25 1998 I do so wIth some reluctance, III VIew of the sensItIvIty to the Gnevor of the lllformatIOn contamed m that eVIdence, but wIth the understandlllg that the Gnevor has requested a full exammatIOn of that eVIdence The Gnevor advIsed that she had receIved the basIc trammg to be a CnsIs NegotIator and that smce receIvmg the mItIal trammg, possIbly for 3 or 4 years, on her Performance RevIews she had consIstently requested refresher trammg, whIch, she advIsed, was to occur every year The refresher trammg, she advIsed, IS usually about a week III duratIOn, takes place at another locatIOn, and mvolves role-playmg scenanos and SkItS She had seen a postmg at the Sudbury Jail requestmg two more CnsIs Negotiators. She and Mr LeHay were the only remalllmg staff at the Sudbury Jail who had CnsIs NegotIator trammg, as ISIdore BlaiS, who also had such tramlllg, had retired. Mr Mroczynskl and Nurse J Buchanan had been tramed followlllg the pOStlllg. On March 31, 1998 whIle relIevlllg Mr LeHay from hlS mght ShIft III the Control Module, the Gnevor asked Mr LeHay Ifhe had heard anythmg more about refresher tramlllg. Mr LeHay told her that he would be attendmg hIS refresher trammg shortly The Gnevor asked Mr LeHay when they would be attendlllg the refresher trammg, assummg that she was to be mcluded. Mr LeHay told the Gnevor that she was not scheduled to attend the trammg, and Said that he hoped that that would not upset her The Gnevor adVIsed that her practIce was to SIgn herself m after her dayshIft Control Module partner, Mr Claude Carner, came m. As she was retuffilllg to her post III Control Module after sIgmng m, Mr KIrby BlaiS mtroduced her to a Cambnan College student and requested the Gnevor to show and tram her as to the operatIOn of the Control Module The Gnevor and the student were proceedmg toward the Control Module when 3 the Gnevor not1ced Mr Mroczynskl m the IC office The Gnevor adv1sed that she smd to Mr Mroczynskl that she had heard that there was a Cns1s Negotiator refresher course takmg place and asked when she could attend 1t. Mr Mroczynsk1 rephed that she was "not scheduled" The Gnevor adV1sed that she asked Mr Mroczynsk1 why she had not been scheduled, and that he rephed because of your med1cal The Gnevor adv1sed that she then smd to h1m "What about my med1cal?" and that Mr Mroczynsk1 smd to her "Y ou have to talk to Roger Chenard" The Gnevor then asked Mr Mroczynskl whether she could have th1S mformatlOn m wntmg. She adv1sed that Mr Mroczynskl then smd to her "Can you tell me 1fyou're seemg a psych1atnst?" She adv1sed that she looked at the student, and smd 'no", and that as she walked away, Mr Mroczynsk1 told her to "speak to Enzo (Pedron)" The Gnevor smd that she became very upset and that she concluded that Mr Chenard had vlOlated the "Consent Order", that management was usmg her "med1cal" agamst her to deny her the refresher course, and that a member of management had asked her whether she was seemg a psych1atnst m front of a student. She smd that she had tears m her eyes Returnmg to the Control Module, she asked Mr Carner whether she could - - get a coffee She had been shakmg and was contmumg to shake Although she had not smoked m two months, she asked a colleague for a c1garette and had been smokmg smce March 31 1998 She adv1sed that she was shakmg as she went down the stmrs She saw the IC for the day, Mr K1rby BlaiS, and told h1m that she was too upset to work. She was crymg and shakmg She adv1sed that Mr Blms had told her that Mr Mroczynsk1 had told h1m what had occurred, and that he Mr Blms, had asked Mr Mroczynskl why he had smd what he d1d, and that Mr Mroczynskl had smd to h1m that he d1dn't know what else to say The Gnevor adv1sed that Mr Blms obtamed someone to rel1eve her and that she went home for the rest of the Sh1ft. She smd that she was not put on the refresher course The Gnevor demed havmg ever told anyone at the Sudbury Jml that she was seemg a psych1atnst, and havmg ever md1cated d1rectly or md1rectly to Mr Mroczynskl that she was seemg a psych1atnst. She smd that her obJectlOn to bemg ass1gned to A area and the allegatlOn that she was seemg a psych1atnst had become aJoke 4 The Gnevor adv1sed that the J all retams Dr Pnnce, a phys1CIan, and Dr McFarthmg, a psych1atnst, to attend to 1nmates She smd that Dr Pnnce 1S her phys1c1an, and that she had never seen Dr McFarthmg. She smd that she had seen a psychIatnst, who 1S not Dr McFarthmg, before her consultatlOn w1th Dr McMullen. She smd that she had glven the name of her psychIatnst to Dr McMullen, and agreed that 1t would form part of her record. When asked whether she had told anyone at the Jml, whether a member of management or of the bargammg umt, the name of her psychIatnst, she repl1ed "I don't bel1eve so" She stated that some officers had confided m her that they were seemg a psych1atnst and she had counselled them not to mentlOn 1t to others, and remarked "ObvlOusly they use 1t agamst you" In cross-exammatlOn the Gnevor acknowledged that Mr Mroczynskl1s a member of management. She adv1sed that she had asked Mr Mroczynsk1 about the refresher course because he had recently returned from bas1c trammg, and would know where the course was held. She smd that after her conversatlOn wIth Mr MroczynskI she dId not speak to Mr Chenard and that she understood that her "medIcal" was not to be broadcast, w1th the mtentlOn that she not take the refresher course She emphatically demed that Mr ~ - MroczynskI had smd that she could not take the refresher course untll she was fimshed WIth her "ordeal" She demed that he had smd that she dId not quahfy to be a Cns1s Negotiator m her current state She smd that she had not spoken to Mr Pedron and smd that she was too upset to have done so on that occaSlOn. She adVIsed that when she returned to work, she had not spoken to Mr Pedron or Mr Chenard. She smd that she "used another route" and smd that th1S matter m1ght be a b1g Joke to these people, but that It was not a bIg Joke to her When asked whether she had any Idea what med1cal mformatlOn Mr Mroczynskl had been referrmg to, the Gnevor rephed that the fact of her havmg seen a psych1atnst had been spread around and that that fact was bemg "used w1th mtent" The Gnevor agreed that she had not been pnvy to Mr Blms' conversatlOn w1th Mr Mroczynsk1 When adv1sed that Mr Mroczynsk1 would testify that she had told h1m that she had been seemg Dr McFarthmg, she rephed that Mr Mroczynsk1 should get the name of her psych1atnst nght. She smd that she thought 1t was fmr to conclude from her 5 conversatlOn w1th Mr Blms and from Mr Mroczynskl havmg told her to speak to Mr Chenard about her medIcal, that Mr Chenard had leaked the mformatlOn that she had seen a psychIatnst. She smd that she had a copy of Part B (of the form entitled "Request for Health InformatlOn on Employee s FunctlOnal AbIhtIes) and that she was not aware of 1t mdIcatmg anythmg about seemg a psychIatnst. When asked to explam how Mr Chenard could breach the "Consent Order" 1f the mformatlOn allegedly leaked was not contamed m Part B she rephed that she could not explam who told Mr Chenard, and stated that there was no doubt that someone at the Jml had learned that she had seen or was seemg a psychIatnst. She adv1sed that she dId not know why Mr Mroczynsk1 had asked her whether she was seemg a psychIatnst. The Gnevor smd that she was told, m the presence of a student tramee, that she could not attend the refresher course on an area m WhICh she had prevlOusly been tramed, because of "my medIcal" She smd that regardless of whether her treatment was psychIatnc or medIcal, the mformatlOn was created for the purpose of returnmg her to work on modIfied dut1es. When asked whether she agreed that 1f Mr Mroczynsk1 had smd that she should see Mr Chenard, that that would demonstrate that he dId not know the reason she was not scheduled to attend the - refresher course the Gnevor smd Mr Mroczynskl had said that she was not scheduled to attend 1t because of her "med1cal" In re-exammatlOn, the Gnevor smd that she d1d not know whether Mr Mroczynskl would dec1de whether she would attend the refresher course RIchard Mroczynskl adVIsed that he has been wIth the M1mstry for about 16 years and 1S the OperatlOnal Manager at the Sudbury Jall He 1S also m charge of AdmISSlOn and DIscharge and IS the CnSIS Negotiator Coordmator In the latter capaCIty he oversees the trammg of the NegotIators, wh1ch usually takes place at Bell Cmrn, the M1mstry s trammg facIhty He has been an OM for approxImately 7 years, 3 of whIch he worked at Cecll Facer Youth Centre He has been a CnsIs NegotIator for about 9 to 12 months. Mr Mroczynskl adVIsed that he made notes of a March 31, 1998 conversatlOn wIth the Gnevor on Apnl 28 1998, at whIch time he typed them on the computer 6 Mr MroczynskI adv1sed that on March 31, 1998 he was m the IC's office dunng ShIft change when the gnevor walked m and asked when she was gomg on her hostage negotIatlOn trammg He advIsed that he rephed not untIl she was fimshed w1th her ordeal He adv1sed that the Gnevor asked h1m what he meant by ordeal and that he rephed "what you are gomg through", and smd that he beheved that that was what he smd, and smd that the Gnevor "prompted" h1m agam "for why or whatever" and that he asked her whether she was st1l1 seemg her psychIatnst. He adv1sed that the Gnevor told h1m that he had no nght to ask, and stormed out of the office He said that they d1d not havc much conversatlOn after that. He said that he d1d not not1ce anyone else m the IC s office at the t1me" He said that the Gnevor had a stern look on her face and that he d1d not want to offend her, so all h1S thoughts were tramed on her When asked what he had meant by "ordeal" Mr Mroczynsk1 said "that she was seemg a psych1atnst" and "she told me about 1t m the past" He smd that he thought she had told h1m that m Apnl, but that 1t must have been earher He said that he Just asked the Gnevor how she was makmg out w1th her gnevances, and that she said she was seemg Dr McFarthmg. He said they "talked for a whlle" and that he "Just hstened to - - what she had to say" When asked whether he recalled the conversatlOn, he rephed "b1tS and p1eces, the h1ghhghts" He smd that the Gnevor told h1m that Ms Basanta had been argumg w1th Mr Chenard m a hearmg, and that he had breached confidentIahty When asked "d1d she tell you how?" he rephed that he d1d not remember and Said "It's like any other conversatlOn. You have staff It goes m one ear and out the other" He agreed that Dr McFarthmg 1S the psychIatnst for the Sudbury Jall When asked who he meant when he asked the Gnevor whether she was stIll seemg a psychIatnst, he rephed "that she was st1l1 seemg Dr McFarthmg" He demed that anyone had ever dIscussed the Gnevor's medical condItIon w1th hIm. He stated that the Gnevor told hIm that she was seemg a psychIatnst. He Said "I don't know what for She dIdn't gIve me any details and I d1dn't ask." When asked whether Mr Chenard ever gave h1m any mformatlOn regardmg the Gnevor s cond1tlOn, he Said that Mr Chenard had not done so Just mformatlOn m the IC s office re the Sh1ftS she works and the posts" i 7 When asked what he had meant by the Gnevor havmg had a stern look on her face Mr Mroczynskl rephed that the Gnevor "wasn't her usual self' He smd that he could Joke w1th her ordmanly He smd that when she came m on the mornmg of March 31 1998 "she meant busmess" He said that he knows that the Gnevor wants to go on hostage negot1ator trammg, that she had asked h1m m the past, and 1S a member of the (CnsIs Negotiator) team. He said "I don't want to exclude her, but w1th what's m the ADI manual, 1t'S felt she couldn t go because of her mod1fied work" He said that the ADI manual reqmres Cns1s Negotiators to be phys1cally and emotlOnally fit. When asked Is 1t because of her med1cal or her accommodatlOn" he rephed, "AccommodatlOn. But she has to have some med1cal cond1tlOn for that. Other than that, she s seemg a psych1atnst, but I don't know what that cond1tlOn 1S" He agreed w1th the suggestlOn that he was not excludmg her from the trammg, that the trammg 1S bemg "deferred because of her accommodatlOn" He said he would very much hke to get the whole team together When asked whether, m h1S conversatlOn w1th the Gnevor, he Said to her "because of your med1cal", Mr Mroczynsk1 rephed "I never had a chance to It ended abruptly" When asked whether he ever told the gnevor that she had to talk to Roger Chenard, he - rephed "I don't beheve I d1d. The dec1slOn was mme m consultatlOn w1th stafftrammg." He agreed w1th the suggestlOn that 1t was h1S dec1slOn to defer the Gnevor's trammg, and smd that he had not demed the Gnevor trammg. In cross-exammatlOn, Mr Mroczynsk1 was asked whether, when the Gnevor saw h1m m the IC's office, anyone else was present. He saId that there were people m the background gomg back and forth, and that he "blotted them out" When adv1sed that the Gnevor's eV1dence had been that a student had been present, he rephed "There could've been ten naked glrlS there I d1dn t want to offend her" He agreed that he was aware that a gnevance had been filed. He sa1d that he submltted a report. He d1d not know whether the student had been asked to subm1t a report. When asked 1f he knew whether the Gnevor had been asked to subm1t a report, he rephed "POSSIbly KIrby and I had a dISCUSSIon." When asked whether hIS d1ScuSSIon WIth K1rby occurred nght after the mC1dent w1th the Gnevor, Mr Mroczynsk1 Said "I was gomg off ShIft. KIrby was commg 8 m after my ShIft." Mr Mrocynskl agreed that It was very poss1ble that he had spoken to KIrby Blms about the mC1dent that dav When asked whether he was sure that K1rby Blms dIdn t ask hIm why he had smd anythmg about the psychIatnst and why he had smd anythmg, Mr Mroczynskl rephed "No KIrby was up at muster" When asked whether he and Mr BlaiS exchange mformatlOn, and whether or not that 1S part of the procedure, Mr Mroczynsk1 smd that he "would fill h1m m on certam detmls, but not elaborately" When 1t was suggested to h1m that th1S mC1dent had made a pretty b1g 1mpresslOn and that he probably would have dIscussed It WIth KIrby, Mr Mroczynsk1 repl1ed "No" He Said that he would have gIven Mr BlaiS the details of the ShIft and have Said "Noe1la's p1ssed offw1th me See you later" When 1t was put to Mr Mroczynsk1 that the Gnevor never told hIm m a casual conversatlOn that she was seemg a psychIatnst, he rephed "I have good relatlOns WIth staff They tell me thmgs" He agreed that the Gnevor had offered h1m the mformatlOn. ! He saId she had done so when he asked her how her gnevance was gomg. 1 i I He agreed that on March 31, 1998 when the Gnevor- came to see h1m, she asked I ! i i h1m why she was not scheduled for a refresher course as a CnsIs Negotiator When asked , I I whether he had Said It was "because of her medIcal", he rephed "It was part and parcel of t everythmg." When asked what he meant that she does not meet the cntena, he rephed ! ! that he d1d not know "what the restnctlOns are" He agreed that he was aware that she I I was seemg a psychIatnst. When asked whether that affected hIS dec1slOn, he rephed "I r f I had my concerns That 1S, toward the pohcy" When It was put to Mr Mroczynsk1 that t r he had Said that one had to be phYSIcally and mentally fit, he rephed "I don't know her i cond1t1on. I'm concerned for her She could do or say the wrong thmg." When It was put to Mr Mroczynsk1 that when the Gnevor asked hIm why she was not scheduled for the refresher course he had smd to her that It was "because of your med1cal" and that she should see Mr Chenard, he rephed, "I don't beheve I smd that. I ! can t recall" When asked whether the Gnevor asked h1m to put 1t m wntmg, he smd that f he could not recall When asked whether he asked the Gnevor whether she was seemg a r t 9 ! t ! psychIatnst, he rephed "I asked her 1f she was stIll seemg her psychIatnst." When It was put to hIm that the gnevor's eVIdence was that she sImply smd "no" and left the room, he rephed 'She mIght ve She left abruptly I d1dn't want to demean her m any way She d1dn't hke the response I thought 1 used common sense and good Judgment." He smd that he was concerned for her well-bemg and the well-bemg of the staff that the Gnevor m1ght have to negotiate for When asked when he made the dec1slOn not to send the Gnevor on the Cns1s Negotiator's refresher course Mr Mroczynskl adv1sed that m m1d-February of 1998 he spoke w1th Dave Elhs m Staff Trammg and asked h1m whether a person seemg a psych1atnst could attend trammg and be a Cns1s Negotiator Mr Mroczynsk1 adVised that he had been selected to be a Cns1s Negotiator m the summer of 1997 When asked whether he found out from the Gnevor that she was seemg a psych1atnst before he had gone to trammg m February, 1998, he replIed that he had "found out some tIme m the spnng of 1998" He demed havmg heard from someone else that the Gnevor was seemg a psychIatnst. When asked whether he had heard It from Mr Chenard, he rephed, after a pause, I beheve she returned to work m the sprmg of 1998 When asked later whether the - concerns he dIscussed WIth Dave Elhs were about the Gnevor, he rephed "We took the trammg and I dIgested It. I'm not gomg to do the negot1atlOns I coordmate those who do" He agreed that he wants to ensure that CnsIs Negotiators are fit. He dId not reply to the suggestlOn that he was concerned that he mIght have one CnsIs Negot1ator who was not fit. When asked whether that was why he had asked Dave Elhs that, he rephed "I asked hIm If I could send down a person who was seemg a psychIatnst" In re- exammatlOn, Mr Mroczynskl adVIsed that h1S concerns, "m rmsmg It W1th Mr Elhs" were ''If she was on a modIfied work program and mIght not be smted to attend Bell Cmrn and do CnsIs NegotIatlOn. My concern was for her and for others who would be affected--theIr hves " Mr Chenard, Supenntendent of the Sudbury Jall, demed that he had dIvulged any of the gnevor's med1cal mformatlOn found m Part B to Mr MroczynskI or to anyone He demed that he had become aware somehow of Dr McMullen s report to Dr Humphnes, and that he had spoken to Mr Mroczynsk1 about the Gnevor's status as a CnsIs 10 NegotIator or about her med1cal sltuatlOn. When asked whether he had spoken to Mr MroczynskI about the Gnevor bemg on modIfied work, he rephed not personally" He advIsed that there IS a bmder wh1ch 1dentIfies staff on modified work. Mr Chenard agreed that Mr LeHay s refresher course was to take place outs1de the mst1tutlOn. He smd that 'normally" he had to be consulted 1f a staff person was to take such a course He smd that he probably" had been consulted m Mr LeHay s case When asked whether 1t was likely that Mr Mroczynsk1 would have dIscussed w1th h1m whether the Gnevor should attend such trammg, Mr Chenard rephed "He d1dn t:' He smd that when he found out about the Gnevor s exchange w1th Mr Mroczynskl' he requested reports, and beheved that the student wrote one When asked whether he followed up on the statement m the report "I overheard the Sh1ft IC ask her 1f she was receIvmg psych1atnc treatment", he smd that he asked Mr MroczynskI where he got the mformatlOn. When 1t was suggested to Mr Chenard that he was the source of the mformatlOn, he rephed 'No" and smd that he was "shocked" when Mr Mroczynskl told h1m that the Gnevor was seemg Dr McFarthmg Arguments. - - The Uillon argued that the 'Consent Order" had been breached. The "Consent Order" had been an attempt to preserve med1cal mformatlOn supphed to the employer m a stnctly controlled confidential envelope for a spec1fic use---to find mod1fied work for the Gnevor D1ssemmatlOn of the mformatlOn was completely and utterly proscribed. However Mr Mroczynskl obtamed mformatlon regardmg the gnevor s med1cal treatment, that mformatlOn was not used to place her m mod1fied work, but had been used to deny her trammg and opportumty Mr Mroczynsk1, perhaps m consultatlOn, and on h1S own, used med1cal mformatlOn to d1sent1tle the gnevor from her respons1b1ht1es as a Cns1s Negotiator Her status as a Cns1s Negotiator was put on h1atus by Mr Mroczynsk1, based on med1cal mformatlOn he should not have had. II Everythmg 1S wrong w1th Mr Mroczynskl's explanatlOn as to how he came to know the gnevor was under psych1atnc treatment. The name of the psych1atnst 1S mcorrect. On March 31, 1998, Mr Mroczynsk1 made the statement to the Gnevor and reahzed he had put h1S foot m h1S mouth. Mr Chenard started an mvest1gatlOn. The Gnevor filed a gnevance A month later Mr Mroczynsk1 put m a report; he d had plenty of t1me to thmk about 1t. He had to figure out a way to glve an mnocent explanatlOn, and pm 1t on the gnevor Accordmgly, he has her tellmg h1m that she 1S seemg Dr McFarthmg. The story 1S all screwed up The Gnevor never saw Dr McFarthmg. Dr McFarthmg s name and the Gnevor s psychIatnst's name are completely d1fferent. He d1dn't get the mformatlOn that she was seemg a psych1atnst from the name of the doctor Someone else told h1m she was seemg a psychIatnst. Mr Mroczynsk1 sa1d the Gnevor told h1m she was seemg a psychIatnst m a casual conversatlOn. However m January, 1998, we held a spec1al heanng to put a stop to th1S, and got an mtenm rulmg. The employer s explanatlOn makes no sense Why would the Gnevor tell an IC m a casual conversatlOn at the Jml that she was seemg a psy.ch1atnst? He got h1S mformatlOn elsewhere He says he rece1ved 1t some tlme m spnng, but could not say when. But he also smd he was talkmg to Mr Elhs about It m m1d-February The Umon concludes that Mr Mroczynsk1 knew about 1t m January, 1998, or even m the fall of 1997, wh1ch was the same tlme that the prevlOUS breaches were occurrmg. How d1d the breaches occur'! Somehow, someone at the Jall, someone most semor, became pnvy to a copy of Dr McMullen s report or pnvy to some of the mformatlOn m 1t. That 1S really the only course, other than Counsel for the Umon havmg sent a psychIatnc report to the employer's representative on the other slde The only way Mr Mroczynsk1 could have found out 1S through a member of management. Dr HumphrIes and Mr Chenard arc management. The conveyance of thIS mformatlOn resulted m ItS mIsuse, and pOIsoned the work env1ronment. It resulted m the Gnevor havmg been demed Job trammg, due to a perceIved or real dlsablhty m Mr Mroczynsk1's V1ew 12 The Gnevor was held back m her trammg, probably through a leak of Dr McMullen s consultatlOn report. Mr Chenard 1S the person most hkely to have done so The Umon reserved Its subm1sslOns as to remedy The Employer subm1tted that 1t was unfortunate that Mr Mroczynskl was unable to remember when he had h1s conversatlOn w1th the Gnevor, but that he d1d not get the mformatlOn that the Gnevor was seemg a psychIatnst from Mr Chenard. It 1S unfortunate both that the mformatlOn got out, and how he used It---w1thout consultatlOn w1th Supt. Chenard. That w1l1 be remed1ed m the course of her gnevance The Issue 1S whether Mr Chenard breached the "Consent Order" The Gnevor's eV1dence was that Part B d1d not contam reference to her seemg a psych1atnst. The Umon's theory 1S that Dr McMullen's consultatlOn report was leaked. We still feel that there was no breach. The employer's w1tness, Mr Mroczynskl obtamed the mformatlOn from the Gnevor He Just doesn t know when he rece1ved It. He d1dn t get the mformatlOn from Mr Chenard. Mr Chenard d1d not have 1t to glve out. _ The Umon proposed no theory or anythmg tang1ble as to why Mr Mroczynskl would he about where he got the mformatlOn. He was clear that the Gnevor told h1m that she was seemg Dr McFarthmg. He then dec1ded to defer trammg That's not Mr Chenard's fault. There 1S no reason not to beheve Mr Chenard, he d1d not have the mformatlOn. The Umon' S subm1sslOns blend mto the harassment and d1scnmmatlOn lssues m the gnevances before th1S board. Th1s 1ssue can st1l1 be rev1slted by management. The employer has adm1tted that there were problems WIth Mr Mroczynskl s use of the mformatlOn and w1l1 deal w1th 1t. The Jump from Dr HumphrIes leakmg the report to Mr Chenard IS too much. Mr Mroczynsk1 says he got the mformatlOn from the Gnevor and not from Mr Chenard. The Umon argued m reply that Mr Mroczynsk1 had made the deC1SlOn not to send the Gnevor on the Cns1s Negotiator refresher course some time before she returned to 13 work, but untll March 31 1998 had not blurted somethmg out. Mr Mroczynskl would he because he had blown 1t, and because Mr Chenard was st1ll smartmg from a prevlOUS dec1slOn that he thought was unfmr Mr Mroczynskl had to protect management. It 1S absurd that the Gnevor would glve any md1catlOn that she was seemg a psych1atnst. You have two stones One doesn t make sense The employer wants to 1solate th1S to Mr Mroczynskl. But Mr Mroczynskl could not have screwed up w1thout knowledge whlCh he d1d not get from the Gnevor Cons1deratlOns. The Gnevor firmly demed havmg ever told anyone at the Sudbury Jml that she was seemg a psych1atnst, and havmg ever md1cated d1rectly or md1rectly to Mr Mroczynsk1 that she was seemg a psych1atnst. When asked whether she had told anyone at the Jall, whether a member of management or of the bargammg umt, the name of her psych1atnst, the Gnevor rephed "I don t beheve so" ThIS response was not a firm demal, and opens the door to the poss1b1lity that she had m fact told one of her colleagues the name of her psychIatnst, and that that mformatlOn was c1rculatmg m the mstltutlOn. However that was not Mr Mroczynsk1 s eVIdence Mr MroczynskI s eVIdence was to the effect that pnor to thIS mCldent, he had a relatlOnshlp w1th the Gnevor m WhICh he could Joke WIth her In that context, 1t IS plausible that m a momentary lapse she mIght have told h1m that she was seemg a psychlatnst. However the Gnevor d1d not test1fy that she enjoyed a relatlOnsh1p w1th Mr Mroczynskl m whlCh she would d1sclose personal mformatlOn to h1m, m confidence or otherw1se The suggestlOn that she enjoyed such a relatlOnsh1p w1th Mr Mroczynsk1 was not put to the Gnevor Although 1t 1S to some extent plaus1ble that the Gnevor told Mr Mroczynsk1 that she was seemg a psychlatnst, It IS not plausIble that she told hIm that she was seemg Dr McFarthmg. The eVIdence afforded no reason or explanatlOn as to why the Gnevor would have told Mr MroczynskI the actual fact that she was seemg a psychlatnst, and m 14 , the same conversatlOn a non-fact, the mcorrect name of her psychlatnst. Yet Mr MroczynskI was firm and confident, that the Gnevor had told h1m not only that she was seemg a psychIatnst, but also that Dr McFarthmg was her psychlatnst. It was not a matter of controversy that Mr Mroczynskl was mcorrect as to the name of the Gnevor s psychIatnst. Was h1S error a result of the Gnevor havmg del1berately mlsmformed him') ThIS seems unhkely, and rmses some doubt as to the accuracy of hIS statement that the Gnevor was the source of hIS mformatlOn that she was seemg a psychlatnst and that she gave hIm the name of Dr McFarthmg as her pSYChlatnst's name The Gnevor smd that Mr Mroczynsk1 told her that she could not attend a CnS1S Negot1ator refresher course because of 'her med1cal" and asked her 'Can you tell me If you re seemg a psychlatnst')" m the presence of a student. Mr MroczynskI smd ImtIally that m m1d-February 1998 he dIscussed with Mr Elhs the Issue of trammg of and use of a Cnsls NegotIator who was seemg a psychIatnst, and that some tlme m the spnng of 1998, the Gnevor told h1m that she was seemg a psychlatnst, and that her psychlatnst s name was Dr McFarthmg. Thus, Mr Mroczynskl s ImtIaI eVIdence suggested that he spoke abstractly or genencally wIth Mr EllIS about CIrcumstances that would pertam to the Gnevor before learnmg that the Gnevor was seemg a psychlatnst. Mr Mroczynskl's eVIdence Imphes an unusual and unexplamed chronology of events, whereby he was contemplatmg m m1d-February 1998 the very Imped1ment (perceived or actual) to the Gnevor s attendance at a Cns1s Negotiator refresher course, before the Gnevor allegedly d1sclosed to h1m that she was seemg a psych1atnst. However Mr Mroczynskl s statement m re-exammatlOn, m Wh1Ch he adv1sed that h1S concerns, "m rmsmg It W1th Mr Elhs" were If she was on a mod1fied I work program and m1ght not be smted to attend Bell Cmrn and do Cns1s NegOt1atlOn. My I concern was for her and for others who would be affected---the1r hves (emphas1s added) " I I I I strongly suggests that the Gnevor was the person Mr Mroczynsk1 had m mmd when he I addressed h1S concerns w1th Mr Elhs m m1d-February, 1998 As Mr Mroczynskl d1d not ! mdlcate that bemg on a modIfied work program was the sole reason causmg hIm to , i [ mqmre m m1d-February 1998 as to whether a CO m1ght not be smted to attend Bell Cmrn ! ~ and do Cnsls NegotlatlOn, I conclude on balance of probablhtles, that It was hIS f , I t 15 l t , f, f knowledge or behef that the Gnevor was seemg a psychlatnst that caused h1m to raIse the matter wIth Mr Elhs at that time Further m exammatlOn m ch1ef, Mr Mroczynskl stated that he thought that he had learned from the Gnevor that she was seemg a psychlatnst, m Apnl, but that It must have been earher In VIew of Mr MroczynskI s vagueness and mconslstency as to when he heard from the Gnevor that she was seemg a psychIatnst, and hIS certamty regardmg the time ofh1S d1scusslOn w1th Mr ElliS and ItS contents, 1 conclude that m m1d-February 1998 he had come to the knowledge or bellef that the Gnevor was seemg a psych1atnst. When It was put to Mr Mroczynsk1 that when the Gnevor asked why she was not scheduled for the refresher course he had Said to her that 1t was "because of your med1cal" and that she should see Mr Chenard, he replled "I don't bell eve I Said that. I can't recall " Th1S 1S not a firm rebuttal or demal. Mr Mroczynsk1' s mablhty to recall the conversatlOn suffiCIently to deny that he made those statements, as well as hIS statement "It's hke any other conversatlOn. You have staff It goes m one ear and out the other" obhges me to conclude, on balance of probabllItles, that the Gnevor's recall of those two statements whIch she attnbuted to Mr Mroczynskl, was accurate The Gnevor s eVIdence was that Mr MroczynskI asked her "Can you tell me If you're seemg a psychlatnst?" m the presence of a student. Mr MroczynskI Said "I asked her 1f she was st1l1 seemg her psych1atnst" Mr Mroczynsk1' s posmg of eIther questlOn to the Gnevor md1cated that he had mformatlOn Wh1Ch 1S expected to be treated w1th utmost confidentIallty The questlOn, m eIther form, should not have been asked m the presence of a th1rd person. Nevertheless, Mr MroczynskI' s eV1dence was that he was not aware of the presence of a thIrd person. The uncontradIcted eV1dence as to the eXIstence of the report of the student and the student's allegatlOn ofMr MrocynskI's statement 1S very persuaSIve that the student was mdeed present. It IS regrettable that Mr MroczynskI dId not notice her and consIder that dlsclosmg the reasons for not sendmg the Gnevor to the refresher course m the presence of a third person would result m a vlOlatlOn of the Gnevor's nght to confidentIallty of med1cal mformatlOn, mespectIve of the "Consent Order" 16 It was not m dIspute that there were two sources of mformatlOn as to the fact that the Gnevor was seemg a pSYCh1atnst Dr HumphrIes, the Mimstrv s physICian, and a letter from Mr Roland, Counsel for the Umon, to the employer s Staff RelatlOns Officer w1th a copy of the report of the gnevor s psych1atnst, requestmg that the report be kept confident1al The eV1dence d1d not establlsh the date of e1ther Mr Roland s letter or of the Gnevor s psych1atnst s letter or the date they were rece1ved by Staff RelatlOns Officer or Mr Chenard. Consequently, I am unable to cons1der whether m relatlOn to the m1d- February, 1998 tlme penod m wh1ch Mr Mroczynsk1 d1scussed the 1ssue w1th Mr Ell1s, the mformatlOn emanated from correspondence between the part1es representatlves It was not m d1spute that Dr McFarthmg s name and the name of the Gnevor s psych1atnst bear httle resemblance to one another I have mtentlOnally omitted the name of the Gnevor s psych1atnst from thiS mtenm dec1slOn, as to do so would add nothmg to the resolutlOn of the matters m d1spute ConcluslOns. I am obliged to conclude, m V1ew of all of the foregomg, that on balance of probab1l1tIes Mr Mroczynskl rece1ved the mformatlOn that the Gnevor was seemg a psychlatnst from a source other than the Gnevor Perhaps he has forgotten the source The spmt and mtentlOn behmd the "Consent Order" set out above was to ensure that the Gnevor s pre-ex1stmg nght to confidentlahty of med1cal mformatlOn, wh1ch mcluded the nght to expect that any mformatlOn pertammg to her health would be mamtamed by management w1th utmost confidentlahty would be mamtamed absolutely The eV1dence was unclear as to how the mformatlOn as to the fact that the Gnevor was seemg a psych1atnst was conveyed to Mr Mroczynsk1 The Gnevor acknowledged that that mformatlOn was not contamed m Part B of the form Request for Health InformatlOn on Employee s Functional Ab1l1tIeS" The eVidence d1d not establlsh whether the fact that the Gnevor was seemg a psych1atnst could have been mferred from the contents of Part B In the absence of the dates of the gnevor s psych1atnst s report 17 - and Mr Roland s letter 1t 1S not possible to draw any conclUSlOn as to whether that correspondence was the source of the mformatlOn that Mr Mroczynsk1 d1sclosed. It IS eV1dent that Mr Mroczynsk1 was prepared to and d1d m fact draw concluslOns as to the Gnevor s smtab1hty (or lack thereof) for a Cns1s NegOtlatlOn refresher course and to practice CnS1S NegotIatlOn as a team member, from the bare mformatlOn that she was seemg a psychIatnst, w1thout seekmg a psych1atnc opmlOn spec1fically on the pomt of the Gnevor's md1v1dual smtablllty or lack thereof Th1S concluslOn, drawn from the mformatlOn that she was seemg a psychlatnst, demonstrates the very nsk that the spmt and mtentlOn behmd the 'Consent Order", wh1ch mandated that all mformatlOn pertammg to the Gnevor's treatment be treated w1th utmost confidentlahty and not be conveyed to anyone except Mr Chenard, was meant to aVOId. I conclude that the eV1dence does not establlsh a breach of the letter of the part1es "Consent Order" I conclude that med1cal and/or psych1atnc mformatlOn pertammg to a member of the Jall staff, spec1fically the Gnevor, whIch was mtended, w1th or w1thout the 'Consent Order", to be handled w1th utmost confident1ahty by management, was m some unknown manner conveyed to Mr Mroczynsk1 1 therefore conclude that the spmt and mtentlOn of the "Consent Order" was breached, m both the March 31 1998 dlscusslOn between Mr Mroczynsk1 and the Gnevor, and m Mr Mroczynskl's failure to seek a psychIatnc opmlOn before concludmg that the Gnevor was not 'fit" or "smtable" for a Cns1s Negotiator refresher course and to act as a Cnsls Negotlator As requested, I reserve as to the 1ssue of remedy and remam se1sed of 1t. Dated at Toronto thIS 9th day of June, 1999 .- ;....----- .U " - 18