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Home My WebLink About2016-0562.Kolmann.18-09-28 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2016-0562; 2016-0566 UNION# 2016-0368-0074; 2016-0368-0078 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kolmann) Union - and - The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services) Employer BEFORE Randi H. Abramsky Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING September 18, 2018 - 2 - Decision [1] On May 6, 2016, the Grievor, Carol Kolmann, filed two grievances which contest the Employer’s refusal to provide her the opportunity to review video footage of the control room at Central East Correctional Centre, on the date and time when she alleged that a workplace accident occurred. She also contests the Employer’s allowing another bargaining unit member to view and summarize the videotape. Facts [2] The parties proceeded through documents and argument. No viva voce evidence was called. [3] On January 21, 2016, a co-worker came into the Grievor’s work area, sat in a chair which broke, and he fell down. In emails, the Grievor claims that the individual had “grabbed my arm he was sitting so close to me.” When she tried to assist him, she “hurt her right side shoulder, neck, back etc. even my left hand thumb.” She filed a claim under the Workplace Safety & Insurance Act (WSIA), asserting a workplace injury. [4] The Employer maintains video surveillance of the Grievor’s work area. On February 19, 2016, after her WSIA claim was denied “because the employer reported that ‘there was nothing seen’” on the video, she requested the opportunity to review the video footage. [5] In responding to the Grievor’s claim under the WSIA, the Employer asked a bargaining unit employee, an administrative assistant in Staff Services, to review it and summarize the results. She did so, and the summary was provided to WSIA. [6] On March 3, 2016, the Grievor’s request to view the video tape for the date and time of the accident was denied by Deputy Superintendent Administration Kevin Nesbitt, as follows: Hi Carol, Tapes produced by CCTV cameras and video recording equipment may only be used for statutory or legal purposes or matters relating to the safety and security of the institution. Unfortunately, your request does not meet the criteria for disclosure. … [7] The Grievor responded the following day, asserting that she did meet the criteria as her safety was involved and the Employer had shared the video with another organization. She wanted to discuss the issue further. [8] On March 7, 2016, Mr. Nesbitt responded that “Human Resources and Employee Relations” had been consulted and that “[p]olicy dictates that I cannot share the footage.” - 3 - [9] On the same date, the Grievor wrote a letter to Deputy Superintendent Nesbitt contesting the Employer’s submission to WSIB that “there was nothing to be seen” and denying her claim, yet denying her the opportunity to see it. Eventually, through the Workplace Safety & Insurance Board (WSIB), the Grievor did get to see the videotapes. Submissions of the Parties [10] The Union asserts that the Employer’s decision to deny the Grievor access to the videotapes violates Appendix – COR10, Surveillance in Correctional Workplaces, which is a Letter of Understanding included in the collective agreement and revised on January 24, 2013. The letter states: The parties agree to the following regarding use of surveillance and electronic equipment in the workplaces: Purpose The purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry. Information obtained may be used for protection against criminal acts such as theft, depredation, and damage to property. Advisement The Employer shall notify the Union of any increases in use of surveillance equipment. In instances that the Employer is relying upon any type of electronic audio or video recordings for discipline or investigative purposes, the Employer shall notify the Union prior to holding a meeting with the employee for the purpose of investigation, that the employer is in possession of electronic audio or video recordings that will be used for discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will provide a copy of such recording to the Union, as soon as reasonably practical, upon request. The use of electronic monitoring surveillance equipment is not to be used as a replacement for supervising or managing, or as a means to evaluate employee performance. Any disputes regarding surveillance in a Correctional workplace by the Employer shall be referred to the appropriate MERC for discussion and resolution. [11] The Union asserts that the Employer used the video tapes during its investigation of the Grievor’s WSIA claim, and consequently ought to have advised the Union of that. It asserts that its failure to do so should have precluded the Employer from relying on the tape. In its view, it’s a matter of fairness. It submits that it is fundamentally unfair that the Employer was able to review the tape in the context of the WSIA claim, but precluded the Grievor from doing so. - 4 - [12] The Union further submits that the Employer violated the Grievor’s rights by allowing another bargaining unit employee to see the video. [13] The Union also argued that independently of Appendix COR10, the Employer’s decision to deny the Grievor access to the video was an unreasonable exercise of management’s rights. It submits that the Employer engaged in a “double-standard” – it could view the video in relation to the Grievor’s WSIA claim, but she could not. [14] The Employer submits that Appendix COR10 is a limited incursion into management’s ability to control videotape surveillance, and is limited, by its terms, to disciplinary matters and investigations. It submits that even if a very broad reading of “investigative purposes” is adopted, all that is required is notice to the Union before an investigatory meeting occurs. It further submits that no video tapes are required to be shown unless there is going to be a “disciplinary meeting”. It argues that these terms are very specific and limit the scope of this provision. It notes that there was no discipline or disciplinary investigation done here. It submits that this was an alleged WSIA matter, and that the rules and procedures of the WSIB govern. [15] The Employer further submits that video surveillance is used for many purposes, and bargaining unit employees, as well as employees covered under the AMAPCEO collective agreement, view them as part of their job. It submits that without a restriction in the collective agreement limiting bargaining employee access to video surveillance, none can be implied [16] In terms of the Union’s claim that the Employer’s decision was an unreasonable exercise of management rights, the Employer asserts that the GSB case law is well established that there can be no independent breach of management rights unless there is a “hook” in the collective agreement. It submits that Appendix COR10 does not establish that “hook” and there can be no such claim without it. Re OPSEU (Dobroff et al.) and Ministry of the Environment, GSB No. 2003-0905 (Dissanayake). Reasons for Decision [17] Appendix COR10 does not assist the Grievor in this matter. Even if the words “investigative purposes” might be read to apply to the Employer’s investigation of the Grievor’s WSIA claim, that only leads to notice to the Union “that the Employer is in possession of electronic audio or video recordings that will be used for discipline or investigative purposes.” It only provides for a copy to the Union “prior to a disciplinary meeting.” There was no such meeting in this case, and consequently, no obligation on the Employer to provide either notice or a copy to the Union. There is no obligation under Appendix COR10 to provide a copy to an individual employee. [18] In this regard, I am not persuaded by the Union’s argument that because the Employer failed to advise the Union that it was using the tape for the WSIA investigation, the Employer was precluded from using that tape in its WSIA - 5 - submissions. The language of Appendix COR10, again assuming without deciding that it applies to this type of investigation, does not limit the Employer in that manner. [19] Also, as the Employer submits, the GSB has not recognized an independent challenge to management’s actions without a “hook” into the collective agreement. Here there is no “hook” under Appendix COR10, and no other provision was cited. Accordingly, this claim may not succeed. [20] I note, however, that the last sentence of Appendix COR10 states: “Any disputes regarding surveillance in a Correctional workplace by the Employer shall be referred to the appropriate MERC for discussion and resolution.” The Union may have some legitimate points that in a WSIA investigation, both parties would benefit from a review of the tapes. In this case, the Grievor was adamant that an accident occurred which caused her significant injury. She disputed the Employer’s summary which found that nothing could be seen. The parties, through the appropriate MERC, should explore whether video surveillance should be provided to employees in these limited circumstances. [21] Also, no copy of the policy referred to in the Employer’s denial of the Grievor’s request was provided at the hearing. The policy, according to the Employer’s March 3, 2016 email to the Grievor, states: “Tapes produced by CCTV cameras and video recording equipment may only be used for statutory or legal purposes or matters relating to the safety and security of the institution.” This matter arguably is for a “statutory” purpose and relates to the “safety” of a staff member. It would appear that some clarification might be in order. [22] In terms of the complaint that a bargaining unit member viewed the video, while the Grievor was not permitted to do so, this complaint cannot succeed. The administrative assistant viewed the video as part of her duties in Staff Relations. There is no prohibition on this contained in the collective agreement. Conclusion: [23] For all of the above-stated reasons, the grievances are dismissed. The matter of video surveillance in relation to WSIA matters/investigations may be explored at the appropriate MERC, as set out in the last sentence of Appendix COR-10. Dated at Toronto, Ontario this 28th day of September, 2018. “Randi H. Abramsky” Randi H. Abramsky, Arbitrator