Canadian Labour Reporter

February 8, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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break?" C left the room and came back in, opened the door wide enough to hit the worker in the back and said "I completely forgot you were in here… you could be dead for all I care." The worker claimed that the incident was "one of many ver- bal and physical attacks I have received from him over the last couple of years inside the male joggers change room, in addition to pushing me in the hallways on multiple occasions, pushing me from behind when I am standing at the photocopier, and pointing his middle finger or swearing at me as he walked by." The worker claimed that he had been a victim of bullying while growing up and C's behaviour made him feel stressed and sick to his stomach. The worker recounted his story to management, adding that C had joked with him in the past but had become "more attacking" over the previous few months. He said he had had enough of the verbal and physical assaults, although he ac- knowledged never having spoken to C about his behaviour. IESO interviewed the worker, C, and other employees. C said he didn't recall the incident, but he said that people often opened the changeroom door wide and exposed people who were chang- ing. When this occurred, he some- times said "Come on. Why are you doing that," but he always apolo- gized if he hit someone with the door. He denied saying the "dead" comment or pushing the worker. C was shocked at the worker's allegations because he thought they were friends, although they hadn't spent as much time togeth- er over the past few years. C also noted that the worker had "issues" at work. Other employees confirmed the joking nature of the change room, the regularity of someone being shouted at to close the door but no one saw C say or do anything inap- propriate. The investigator determined that the worker's account wasn't credible and his allegations of workplace harassment were un- substantiated. The worker didn't accept the findings, but decided to move on as little would be gained by drawing things out. On Feb. 27, 2019, IESO sus- pended the worker for five days for "falsely and maliciously" filing a harassment complaint and claim- ing the other employees collabo- rated to corrupt the investigation. The arbitrator found that the investigation and the conclusion that "whatever conduct may have occurred at various points be- tween C and the [worker], it was done without malice or ill intent on the part of C" was reasonable. However, the arbitrator noted that the worker "is an intense indi- vidual, with a troubled past" who genuinely perceived that what had happened to him was harassment. The arbitrator found that the in- cidents that the worker described likely happened, "but were of such an objectively borderline nature as to escape either the notice or the recollection of the witnesses" though they made a bigger impres- sion on the worker. As a result, there was nothing malicious about the worker's complaint and he be- lieved it was true, said the arbitra- tor. IESO was ordered to rescind the five-day suspension from the worker's record and compensate him for any loss of pay. Reference: Society of United Professionals and Independent Electricity System Operator. M.G. Mitchnick — arbitrator. Richard Charney, Travis Bertrand for employer. Alex St. John, Martin Hastings, Andre Kolompar, Lemann Fung, Andrew Lee, Helen Manning for employee. Dec. 23, 2020. 2020 CarswellOnt 19342 and occasionally reviewed em- ployees' access to the systems. In late 2018, the hospital gen- erated a report revealing that on Sept. 11, 2018, the worker's ac- count accessed a patient inquiry record for another clerical associ- ate who had been a patient in the cardiac care unit. In addition, the worker's account accessed the records of a second clerical asso- ciate twice on Feb. 1, 2018, and a registered nurse's breast screen- ing clinic registration on Feb. 27. The worker explained that she accessed the first colleague's record on Sept. 11 because two nurses asked her to look up the coworker's room number. Al- though hospital administration would have room numbers, she said that was how she always looked them up. She didn't look at any other private health in- formation when she did so, she added. The worker also said that the Feb. 1 access of the second col- league's file was related to the col- league's registration for a consul- tation, but the colleague claimed she had been registered by some- one else. As for the Feb. 27 access of the nurse's breast screening registration, the worker denied doing so and couldn't explain why the report showed that her cre- dentials had been used. The worker mentioned that on rare occasions — about once per year — she came back to her desk after lunch to find that her computer hadn't logged out of the system. She assumed that the sys- tem hadn't shut down properly. She also said that she had discov- ered nurses occasionally using her computer coming back from a break. The hospital believed the worker intentionally violated pa- tient privacy. Since she was a se- nior employee who should have been well-versed in hospital poli- cies, it determined that the mis- conduct was serious enough to warrant termination. The arbitrator found that it was unlikely that anyone else could have logged in with the worker's credentials. The rare occasions when the computer didn't log out properly didn't match up with the frequency of the improper access and the union didn't present any evidence to support the infer- ence that someone else had the worker's credentials, said the ar- bitrator. As for the purposes of the ac- cesses, the arbitrator noted that the worker may have legitimately needed to look up the coworker's room number on Sept. 11, but it was not proper practice to use the Meditech system. The worker denied knowing any other way, but the annual training outlined what was permissible and the sys- tem showed a warning with every login about the need to protect patient privacy. The arbitrator also found that the Feb. 1 access of the colleague's information and the Feb. 27 ac- cess of the nurse's breast screen- ing registration were not "legiti- mate purposes for which she was entitled to access Meditech," since she wasn't in the circle of care. The arbitrator determined that the misconduct was serious, intentional, and risked the hos- pital's trust with patients. Since the worker failed to acknowledge any wrongdoing, the arbitrator agreed that termination was ap- propriate. Reference: TC, Local 419 and William Osler Health Centre. Jesse Nyman — arbitrator. Amanda Hunter for employer. Daniel Anisfeld for employee. Jan. 7, 2021. 2021 CarswellOnt 39 Clerical worker violated personal information policy Five-day suspension for complaint overturned

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