We have recently reported on grievance arbitrations in the context of discipline or termination of employees. Through this process, unions are able to challenge the disciplining of employees under the collective agreement. For example, we looked at a union’s challenge to the disciplining of an employee for alleged non-compliance with the employer’s COVID-19 vaccination policy and a challenge to an alleged failure to comply with the employer’s standard of practice.

However, grievance arbitrations arise in other circumstances as well. For example, unions can challenge policies instituted by employers and the employer’s conduct in certain circumstances.

The recent case of Ontario Public Service Employees Union v Ontario (Solicitor General) before the Grievance Settlement Board provides an interesting example. In this case, the union complained on behalf of three grievors that the employer failed to take all reasonable precautions concerning the grievors’ safety both inside and outside the workplace.

Grievors informed that their personal information was disclosed to inmates

The three grievors were employed as correctional officers at the maximum-security Thunder Bay Jail.

In March 2014, two inmates at the Jail were charged with an assault on three other inmates. Two of the grievors were on duty at the time of the assault, and the third grievor later took one of the inmates who suffered injuries to the hospital.

In July 2014, one of the charged inmates informed one of the grievors that the police had disclosed the identities and addresses of the three grievors within a Crown brief, which the two inmates had seen. The grievor immediately informed her Deputy Superintendent

Deputy Superintendent and Law Enforcement Investigation Unit investigate the claim

Later that same day, the Deputy Superintendent phoned the grievor and confirmed that what the inmate had told her was true – the grievors’ personal information was disclosed to the two inmates as part of the disclosure in their criminal proceedings.

Shortly thereafter, the Deputy Superintendent emailed all three grievors to advise them that the Crown Attorney and defence lawyer handling the matter had been informed and the grievors’ personal information had subsequently been removed.

The Superintendent emailed the grievors several days later to advise them that the Employee Assistance Program was available to them and that he was consulting with the Law Enforcement Investigation Unit about the matter.

The Deputy Superintendent consulted with the Law Enforcement Investigation Unit (which is external to the jail) about the matter. That Unit determined that although the personal information was included within the Crown brief, the information was only seen by defence counsel and that the inmates had not seen the disclosure. The Unit also confirmed that a new disclosure system had been created to reduce the likelihood of this sort of problem occurring again.

However, this information was not disclosed to the grievors. The grievors only became aware that their personal information had not been provided to the inmates as part of productions in the grievance proceedings.

Union claims employer failed to adequately address privacy breach

The grievor who had been initially informed of the issues by an inmate made repeated attempts to ascertain how and why her personal information was disclosed. One of the grievors requested a full investigation.

The union argued that the employer failed to adequately respond to the disclosure of the grievors’ personal information, resulting in a significant risk to their physical and psychological health and safety.

The grievors conceded that the Thunder Bay Police were responsible for including the grievors’ personal information in the Crown brief; however, they argued that their employer had an obligation to determine why it happened.

Employer required to take reasonable precautions to protect employees

Arbitrator Wacyk explained that supervisors are required to take every precaution reasonable in the circumstances for the protection of a worker, as set out in the Occupational Health and Safety Act (OHSA) and mirrored in the collective agreement. This includes both physical and psychological safety.

As a result, the employer, as represented by the institution’s management, is required to investigate and take steps to resolve any risk to employees’ safety and health and to take reasonable steps in investigating employee complaints.

The Arbitrator noted the potential risk posed by an inmate’s possession of the personal information of correctional officers, particularly where the officers were witnesses to a crime committed by an inmate and are perceived as a risk to the inmate.

Employer did not breach duty by failing to conduct an investigation

The Arbitrator found that the employer took the risk to the grievors seriously and moved quickly to protect and support them. The Deputy Superintendent contacted the police, initiated the Law Enforcement Investigation and communicated updates to the grievors the same day.

The Arbitrator noted that as the Jail was not responsible for the breach, any meaningful investigation had to be conducted by an entity with authority to investigate the Crown and police, which were both beyond the authority of the employer. The employer contacted the Law Enforcement Investigation Unit for this purpose.

That Unit found no reason to believe the disclosure had been seen by the inmates, which explained why the employer did not make inquiries of the inmates. As a result, the employer conducted the necessary and appropriate investigation within its authority.

Reasonable and rational steps were taken by the employer to protect the safety of its employees

The union argued that the employer’s failure to advise the grievors that their personal information was not received by the inmates caused years of stress and fear.

The Arbitrator found that there had been a breakdown in communication between the employer and grievors on this issue. The grievors bore some responsibility for this, and the employer did not knowingly withhold this important information from the grievors.

While the Arbitrator found that the employer ought to have been clearer in its communications with the grievors, the lack of clarity was unintentional and resulted from a misunderstanding regarding the grievors’ interpretation of the information they did have. The Arbitrator found that this lack of clarity did not rise to the level of breaching the OHSA or the collective agreement.

The employer took rational, reasonable and responsible steps to protect the safety of the grievors, prompting the Arbitrator to dismiss the grievances.

Contact the Labour Lawyers at Grosman Gale Fletcher Hopkins LLP for skilled representation at Grievance Arbitrations

If you are an employer faced with a grievance, or the prospect of a grievance arbitration, contact one of the experienced Toronto labour lawyers at Grosman Gale Fletcher Hopkins LLP. For over 30 years, we have assisted employers across all sectors, including industry, healthcare, education, and others through the grievance process and have represented hundreds of clients at arbitrations. Contact us at 416-364-9599 or online to schedule a consultation for your labour relations issue.


Return to Blog →

Our Team