Whether it’s in healthcare, law enforcement, or government, all sorts of work requires that employees have access to confidential information. As the breadth and scope of information-gathering increases, so too does the public’s concern with privacy.
Both employers and employees play a role in exercising responsible stewardship of confidential information. As a response to the mounting pressure to protect confidentiality, employers have tended to invoke “zero tolerance” policies and impose strict discipline on employees who violate them.
Despite that trend, in a unionized workplace, the discipline imposed by an employer must be proportional to the misconduct committed by an employee.
In cases of inappropriate access of confidential information — in addition to the usual mitigating factors — an arbitrator will make their determination with an eye to the following contextual factors.
- Number of accesses
It is not surprising that the greater the number of inappropriate accesses, the more likely an arbitrator is to uphold severe discipline.
A grievor who has exhibited a prolonged pattern of disregard for privacy is less likely to be successful at arbitration. Conversely, where grievors have made only a few isolated accesses, the discipline is softened.
For instance, in North Bay Health Centre[1] the termination of a nurse with 22 years of seniority was upheld after she accessed the confidential information of more than 5,800 patients. The arbitrator in Heartland Regional[2] focused on the fact that 270 inappropriate accesses were made by the terminated x-ray technologist over just 3 months. Where a grievor has accessed dozens, hundreds, or thousands of confidential records, they are not likely to be reinstated.
- Reason for access
The reason the information was accessed will weigh heavily on the appropriateness of the discipline imposed.
Arbitrators are unlikely to overturn severe discipline when an employee has accessed confidential information for a malicious or self-serving reason. Some examples include: a grievor accessing the clinical files of a woman engaged in a custody battle with her son[3]; accessing the medical file of the grievor’s former tenant in an effort to find her new address and collect rent owing[4]; and snooping on a former partner’s new romantic interest[5].
The awards upholding termination in North Bay Health Centre, Heartland Regional, and Prairie North[6] noted that curiosity will attract severe disciplinary sanction. Even where it is not done out of malice, the absence of a defensible reason for access will support severe discipline.
Context may mitigate against the seriousness of the access. In one extreme example, after being the subject of threatening phone calls and stalking, a bureaucrat accessed the vehicle records of her husband’s new romantic partner out of fear for her safety. The arbitrator considered the context important and substituted the termination for a one year suspension.[7]
- Consent to access
While consent is not an excuse to violate a privacy policy, it may mitigate against harsher discipline.
For example, consent was a key factor for an arbitrator substituting a termination for a modest suspension in Bluewater Health[8]. In that award, a nurse had accessed the health records of her elderly father and disabled daughter with express or implied consent. Similarly, in Georgian Bay[9] the termination of a nurse was substituted for a lengthy suspension, largely because the confidential patient information was accessed for care-related reasons with express consent.
- Disclosure to a third party
Where confidential patient information has been disclosed to a third party, more severe discipline will be upheld.
For instance, a Saskatchewan arbitrator found that a two-and-a-half year suspension was warranted for a health records clerk who read confidential patient information aloud to her coworkers.[10] The clerk only committed one inappropriate access and the patient was a family member who impliedly consented to the access.
Arbitrators have consistently treated inappropriate access of confidential information as very serious misconduct. Lengthy suspensions have been imposed even in the most sympathetic of cases. It is imperative that employees and union members receive training on applicable policies, their responsibilities, and the potential consequences of breaching those policies.
This post is written by our Articling Clerk Jason Edwards.
[1] North Bay Health Centre v. O.N.A., 2012 CarswellOnt 2509.
[2] Heartland Regional Health Authority v Service Employees International Union (Seiu – West), 2016 CanLII 9532.
[3] Timmins & District Hospital v. O.N.A., 2011 CarswellOnt 3370.
[4] SGEU v. Saskatchewan (Wolfe Grievance), [2003] S.L.A.A. No. 2.
[5] Capital District Health Authority and NSGEU (A), Re, 2005 CarswellNS 729.
[6] Prairie North Health Region and HSAS (McHattie), Re, 2014 CarswellSask 54.
[7] Nova Scotia (Public Service Commission) and NSGEU (Hillier), Re, 2013 CarswellNS 961.
[8] Bluewater Health and ONA (Hardy), 2010 CarswellOnt 123440.
[9] Georgian Bay General Hospital and OPSEU, Local 367 (J. (K.)), Re, 2014 CarswellOnt 5923.
[10] C.U.P.E., Local 5111 v. Saskatchewan Assn. of Health Organizations, 2011 CarswellSask 250.