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Issue link: https://digital.hrreporter.com/i/1336780
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