Breach of privacy in the unionized context: modest awards still the norm?

A recent arbitration decision demonstrates that while arbitrators are no longer reluctant to apply the right to privacy in the unionized workplace, the damages awarded for a breach of privacy are still relatively modest.

In St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, an employee worked part-time at two different extended care facilities. In one facility, she made a request for accommodation; in the employer’s facility (St. Pat’s), she did not request accommodation and, in fact, provided a medical note stipulating that she could work. The other facility was suspicious and requested medical information from the employer. The employer confirmed to the other facility that the employee was not currently being accommodated by St. Pat’s, had no work-related restrictions and that she was working her regularly scheduled shifts. As it turns out, the employee lost her job at the other facility; a different arbitrator upheld the termination on the basis that the full medical information provided to that other facility disclosed that she could not be accommodated without undue hardship.

The employee claimed, by way of grievance, that the sharing of her medical information by her employer was improper. At an arbitration hearing, the employer agreed that this disclosure of medical information was improper and apologized (while drafting an agreed statement of facts). The arbitrator concluded that this breached the Occupational Health and Safety Act, specifically paragraph 63(1)(f), which states that “no person shall disclose any information obtained in any medical examination, test or x-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case”. It also breached the anti-harassment clause of the collective agreement and the tort of “inclusion upon seclusion”.

The arbitrator then turned to the appropriate remedy. She considered five factors:

1. The nature of the wrong: the arbitrator found that the employer should have taken better steps to prevent this situation
2. The effect on the employee’s health and financial position: the employee was embarrassed and humiliated by this breach, but there was no financial loss. The arbitrator pointed out specifically that the employee did not lose her other job because of this disclosure of medical information and, in any event, any losses in her other jobs were dealt with in that separate arbitration
3. The relationship between the Grievor and the Employer: the arbitrator concluded that “This is an employment relationship, requiring mutual respect and trust.”
4. The degree of distress, annoyance, and embarrassment suffered by the employee: on this point, the arbitrator attributed significant responsibility to the employee, stating, however, that: “one also has to take into consideration all the facts. They reveal that by doing similar jobs in two facilities and by providing conflicting medical information to them for overlapping periods of time, the resulting consequences cannot be solely attributed to this Employer.”
5. The conduct of the parties: on this point, while the arbitrator acknowledged the employer’s apology, the arbitrator gave it very little weight as the employer had waited almost three years to apologize and still was not requiring its contractors to comply with a privacy policy.

The arbitrator, in light of these factors, made an award of $1000.

This relatively modest award, unfortunately, fits well within the range of awards in other cases for breaches of privacy. While arbitrators have no difficulty articulating the importance of privacy in the workplace, the ultimate damage awards do very little to encourage employers to change their behaviour in future cases.