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Grievor awarded $5,000 for breach of privacy

An interesting case (Edmonton Police Service v Edmonton Police Association), sends a strong message to employers that it is important to respect employees’ privacy interests.

An Alberta labour arbitrator, Andrew C.L. Sims, Q.C, found that the Edmonton Police Service had to pay a grievor $5,000 in damages for breach of privacy following a meeting held October 4 that breached the grievor’s rights to privacy. As the meeting progressed, an acceptable message transformed, due to tone and repetition, into an unjustified portrayal of the grievor as someone suffering from serious mental distress perhaps to the point of being suicidal. The meeting also revealed that the grievor was using the employee assistance program, implying that this type of assistance was needed. Given the potential to hurt reputations and careers, the arbitrator considered this as a serious breach.

How did this happen?

The grievor, a detective with the Edmonton Police Service, had been working as an investigator for over thirty years.

On September 30, 2011, the grievor was involuntarily transferred from one unit of the Police Service to another by a process now conceded to be contrary to the Service’s transfer policy. The transfer had been under consideration for some time but had not been decided upon. The plan was to assess the results of a broadly based unit review and, as part of that, decide on the transfer during the first week of October 2011.

However, at this point, a difficult conversation between the grievor and his Staff Sergeant took place. As a result of this conversation, their working relationship was destroyed. The tension between the grievor and his Staff Sergeant was aggravated by the fact that the grievor genuinely believed that nothing was being done about the transfer issue.

To that end, on September 30, 2011, the Staff Sergeant and the grievor entered into some rapid and heated discussions whereby the Staff Sergeant made an angry outburst, swearing at the grievor. The next thing you knew, the grievor was suspended with pay. There was an internal decision made at this point to transfer the grievor.

Subsequently, concerns were raised about the grievor’s well-being and emotional state. The grievor was asked to have himself assessed by a psychologist. Although he did not want to do this, he reluctantly agreed to do so. Ultimately, the psychologist reported that, despite his emotional reaction to a difficult and trying work situation and the shock of his removal from his unit, he had adjusted quickly and was “psychologically intact and functional”.

While this was taking place, the grievor remained suspended. Right before the psychological assessment was being arranged, a meeting of the unit’s staff took place on October 4. The goal of the meeting was to discuss the unit review, including the decision to reassign the grievor.

But that was not what took place – during the meeting, there was some discussion about the transfer, but there were also references made about the concerns regarding the grievor’s health and emotional condition.

At the meeting, after discussing his transfer and referring matters to human resources, the Superintendent made further comments about how concerned she was for the grievor, and that persons in the meeting should reach out to him because it was important to be there for him. People in the meeting were told not to feel as though he was the wayward duck that needed to be ostracized. People attending the meeting were also told he was seeking help from the employee assistance program.

After the meeting, the grievor’s assigned partner sent an email to all of the persons who had been at the meeting assuring them not to worry about the grievor because of the comments made at the meeting.

On behalf of the grievor, the Edmonton Police Association launched a grievance complaining about the involuntary transfer and also the privacy issues that arose out of the unit meeting.

The Association argued that there were two aspects of breaching the grievor’s privacy rights. First, without any sufficient cause, he was essentially suspended from duty until he submitted to a psychological evaluation. Second, there were several references made to his alleged state of health, and to his being assisted by the employee assistance program during the October 4th meeting.

The arbitrator found that the Superintendent initially took a cautious approach when she referred to human resources and it was inappropriate to comment further. However, her obvious concern for the grievor led her to repeat the message and, with repetition the message changed from one of “it’s an issue I can’t talk about” to “he’s got a problem that is sufficiently serious that I am very worried about him”. The more these comments were repeated, the more it suggested that the grievor had suffered some serious mental event.

The situation was exasperated when persons in the meeting were told to reach out to him and then he was seeking assistance from the employee assistance program. The objective observer hearing all this would naturally conclude that the grievor was suffering from a serious mental health issue of sufficient severity that he had to be removed precipitously from the unit and was in need of professional treatment.

Also, although there was no malicious motive by the Superintendent, the urge to be open and transparent with the work group increasingly and unduly prevailed over the grievor’s privacy interests.

The end result was that the meeting disclosed the fact the grievor had sought the assistance of the employee assistance program, and it revealed information about the grievor’s state of health. This was inappropriate and also premature because the grievor’s had agreed to be tested. The arbitrator stated, “The way it was presented left the clear impression there was something more to it than that”.

Essentially, the meeting suggested that the interpersonal conflict was a result of the grievor’s mental state, a conclusion not justified by the report or the grievor’s health as it proved to be.

With respect to the grievor’s, the arbitrator was reluctant to address the delicate issue of when a police service, concerned about the fitness for duty of a police officer, could compel a fitness for duty assessment. However, the arbitrator stated that the meeting of October 4 breached the grievor’s rights to privacy. As the meeting progressed, an acceptable message transformed, due to tone and repetition, into an unjustified portrayal of the grievor as someone suffering from serious mental distress perhaps to the point of being suicidal – and it also revealed that the employee assistance program used, implying that this type of assistance was needed.

The arbitrator stated:

Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information. To anticipate a diagnosis, based only on personal observations, however genuine the concerns, and to discuss that in public, is just as serious a breach of privacy. Arrangements were underway to get the grievor assessed. Implying anything as to his state of health pending that assessment was inappropriate and unnecessary”

Consequently, the grievance was allowed in that the griever was awarded $5,000 for compensation for the breach of privacy.

What is the lesson here?

As can be seen from this case, it is unacceptable to share an employee’s medical condition with employees in the workplace, whether it is suspected, or in the process of being confirmed, or confirmed. It is unacceptable to go on and on about concerns related to a worker in the way that this employer did. Simply put, it harms an employee’s reputation and affects all future interactions in the workplace. This is especially true when dealing with an employee who relies on an image of credibility and reliability. It does not matter if the concern is genuine – it is not acceptable to disclose an employee’s medical situation period.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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