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GRIEVANCE SETTLEMENT BOARD ASSERTS LAST-RESORT POWER TO ORDER DISMISSAL OF MANAGER IN SEXUAL HARASSMENT CASE

The Ontario Grievance Settlement Board has recently ruled, in a preliminary decision in a sexual harassment case, that it has the jurisdiction to order dismissal of a managerial employee if such an order is necessary as the only available means to effect a remedy with regard to a collective agreement right. The Board further ruled, however, that this necessity did not arise in the case at hand, as other appropriate remedies were available to the parties. Details below.

P.E.I. COURT UPHOLDS RULING THAT PRIVACY LAW PROTECTS NAMES, JOB TITLES AND SALARIES OF GOVERNMENT EMPLOYEES

In rejecting the first application for judicial review of a decision under Prince Edward Island's two-year-old Freedom of Information and Protection of Privacy Act, the P.E.I. Supreme Court has upheld a ruling by the province's Information and Privacy Commissioner that disclosing the names, positions and salaries of employees of the Workers Compensation Board to a newspaper is prohibited as an unreasonable intrusion on personal privacy. Details below.

The union representing employees in Ontario’s correctional system filed grievances on behalf of nine members, all alleging sexual harassment by the same managerial employee of the Ministry. Claiming that the employer had failed to live up to its statutory and collective agreement obligations to deal with the matter, the union asked, together with other remedies, that the Ontario Grievance Settlement Board issue an order terminating the manager’s employment. Alternatively, the union sought an order that the manager be moved from his position at the Windsor Jail to a non-supervisory role or that he be reassigned to another institution.

Because the union, the employer and the manager were seeking to negotiate a resolution of the matter, they agreed to ask the Board to rule in an interim decision on three issues that had them deadlocked. The parties provided an agreed Statement of Evidence that was to be accepted as true and provable only for purposes of the interim decision. Based on this statement, they asked the Board to determine whether the facts as asserted by the union disclosed a prima facie case of sexual harassment; whether the Board had jurisdiction to order the manager’s dismissal as urged by the union; and whether, assuming the Board had the requisite jurisdiction, all or some of the remedies sought by the union were appropriate.

While the manager took no position as to the Board’s jurisdiction, the union and the employer basically agreed that it was within the Board’s powers to order a transfer to a different institution, or to direct that a managerial employee be precluded from exercising supervisory functions over particular employees. Where they differed was on the Board’s jurisdiction to order the outright dismissal of a manager. The employer argued that the Board could not do this, because the discipline and discharge of managerial employees was a function reserved to the Deputy Minister or his designate not only by established labour relations conventions but also specifically by s.22 of the Ontario Public Service Act. To find otherwise, the employer submitted, could unfairly subject managers to the “double jeopardy” of having a disciplinary measure brought to the Board for increase if another employee and the union did not consider it severe enough. As well, the employer argued that having the Board rule on the dismissal of a manager would deny that person procedural fairness, since its processes were designed to deal with disputes between the collective bargaining parties rather than the rights of individual managers.

The union, for its part, argued that the existence of a right requires the availability of a remedy, citing the Board’s decisions in Howe/Dalton/Loach, [1992] O.G.S.B. 3155 and other cases affirming its jurisdiction.

Board Vice-Chair Bram Herlich ruled that the Board does have the jurisdiction to direct the employer to dismiss a manager who has engaged in sexual harassment, but only if such an order is absolutely necessary to remedy a grievance. Such circumstances did not exist in the present case, he ruled.

Herlich expressed his intention to be very limited in his analysis of all issues except the jurisdictional question, because “it would be inconsistent with the parties’ shared goals if this decision were, in any way, to be seen to impair their ability to fairly litigate the case and, perhaps more importantly, … to inhibit their capacity to meaningfully negotiate an acceptable resolution of the matter.” The jurisdictional issue was not subject to the same constraint, he observed, because “[t]his is a distinct legal question whose determination, unlike the other issues enumerated herein, does not depend chiefly or at all upon the assessment (assumed or otherwise) of the conduct of any of the participants.”

Accordingly, Herlich tersely dismissed the motion, brought on behalf of the manager, that there was no prima facie case. Holding that “I am not persuaded that it is impossible to arrive at the conclusion” that at least some of the manager’s conduct amounted to sexual harassment, he emphasized that he had reached no decision on the merit of the claims: “[P]erhaps all that I have decided is that the union’s case (again, based on its pleadings) is not so weak as would cause me to dismiss it at this stage.”

Turning to the jurisdictional issue, Herlich quoted the Board’s decision in Howe/ Dalton/Loach that jurisdiction depends on availability of remedy: “[I]n our view, whether a particular remedial order is absolutely necessary to finally and effectively remedy a grievance is directly linked to the question of whether the Board has jurisdiction to grant that order…[I]f based on all of the evidence the Board concludes that it is absolutely necessary to direct the employer to take specific disciplinary action against a member of management, in order to remedy a grievance, it has the jurisdiction to do so. Because such an order is absolutely necessary, it is remedial in nature, and within the Board’s jurisdiction…The other side of the coin is that if the Board is satisfied that other remedial orders can reasonably be expected to provide full redress, the direction of specific discipline takes the flavour of a punitive direction which will be beyond the jurisdiction of the Board.”

This means, Herlich reasoned, that “[t]he Board’s jurisdiction is said to exist, not as some free floating proxy for the normal exercise of managerial functions, but only in the rare cases where its exercise is absolutely necessary to effect an appropriate remedy.”

Applying this analysis to the case at hand, Herlich concluded that the employer was obliged by the terms of the collective agreement and by statute to ensure that the workplace was free from sexual harassment. In a situation where that obligation had been breached and where the removal or dismissal of the harasser was absolutely necessary in order to effect a remedy and enforce the collective agreement, “it might well be suggested that a failure by this Board to effect that remedy would amount to reviewable jurisdictional error.” Therefore, Herlich held, “I am satisfied that, in the appropriate case and where it is absolutely necessary to effect a meaningful remedy, this Board’s authority includes directing the employer to terminate the employment of a manager who has engaged in sexual harassment.” In response to the parties’ jurisdictional question, he accordingly ruled, “I am satisfied that all of the remedies sought by the union in this case are potentially within the jurisdictional arsenal of this Board.”

However, having affirmed the Board’s potential jurisdiction to order dismissal, in answering the third question – as to which of the remedies sought by the union were appropriate – Herlich ruled that dismissal was not called for in this case: “I am not persuaded that the principal remedy sought by the union, i.e. that the employer be ordered to remove [the manager] from his employment with the Ministry, is absolutely necessary in order to effect an appropriate remedy.” If the facts asserted by the union proved to be true, Herlich held, its alternative calls for the manager’s reassignment to non-supervisory duties or to another institution “are remedies which might be appropriate in the circumstances of this case.”

Vice-Chair Herlich has struck a very delicate balance between affirming the jurisdiction of an arbitration board to take whatever action it deems inescapably necessary in order to effectively resolve a grievance, on the one hand, and on the other, respecting the importance of refraining from unnecessarily encroaching on the authority of the employer to discipline managerial employees.

The Commissioner based this decision on her interpretation of s.15(2) of the Act, which provides: “A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if…(d) the personal information relates to employment or educational history” or “(g) the personal information consists of the third party’s name when (i) it appears with other personal information about the third party …” Section 65(2) of the Act further states that, “if the record or part of the record that the applicant is refused access to contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy.” In her ruling, the Commissioner stated: “I agree with [the Workers Compensation Board] that both job title and salary information form a part of an individual’s employment history and therefore satisfy the definition of personal information under the Act. I find that job title and salary are obvious basic tenets of one’s employment history in accordance with the ordinary meaning of the term.” MacNeill applied for judicial review of this decision.

Before the P.E. I. Supreme Court, MacNeill argued that the name, position and exact salary of employees is not personal information for the purposes of the Act because it is not “collected” by the public body pursuant to s.2(1)(b) of the Act. He argued further that the Commissioner erred in presuming under s.15(2) that the disclosure of this information would be an unreasonable invasion of privacy, because this presumption was rebutted by the WCB’s past practice of allowing the same kind of information to be tabled in the Legislative Assembly and by the posting on its website of a list of staff and their positions, telephone numbers and email addresses.

MacNeill maintained that the privacy protection purpose of the Act was secondary to its informational disclosure purpose, and suggested that public servants lose the right to be protected from embarrassment because they are employed by government.

Chief Justice Jacqueline Matheson dismissed the application for review, ruling that the Commissioner made no error in her interpretation of the law.

Since this was the first application under recently enacted legislation, the Court first determined the appropriate standard for review. The issues in the case at hand were primarily questions of law, Matheson found, and the P.E.I law is so new that the Commissioner “has not had the opportunity to build up a body of experience or jurisprudence upon which she can rely to guide her in her decisions.” Therefore, the Chief Justice held, “I find the proper standard of review is correctness on the law, but reasonableness … on the facts.” In this regard, she noted that in Alberta, which has a statute very similar to P.E.I.’s, the Court of Queen’s Bench in Alberta (Attorney General) v. Kausheel, [2003] A.J. 258, found the standard of review to be correctness on issues of law.

Turning to the applicant’s allegations of reviewable error, Matheson addressed the argument that the information at issue was not personal information because it was not “collected” by the government. Pointing out that personal information is defined as “recorded information about an identifiable individual” and is not limited to “collected” information, Matheson held that “[t]he fact the WCB generates some of the information as opposed to collecting it does not take the information outside the definition of personal information in the Act.” Likewise, she found that the information at issue was clearly part of an individual’s employment history under the Act, as the Commissioner had ruled: “If job title and salary information did not form part of an individual’s employment history, it begs the question as to what exactly would form part of an individual’s job history. It would seem to be a commonsense interpretation of the term…”

The Chief Justice next determined that the Commissioner had followed correct procedure in making the presumption under s.15 (2) that disclosure would be an unreasonable violation of privacy, because she had followed the reasoning of her counterpart Commissioner in Alberta, where the relevant statutory provisions were identically worded. Building on the foundation of two decisions in that province — Alberta Order 98-020[52] and Alberta Order 2001-01[40] — the P.E.I. Commissioner had correctly concluded that disclosure of name and specific salary, as opposed to salary range, raised the presumption under s.15(2), Matheson held. This presumption was not rebutted by the WCB’s prior actions in disclosing information, she continued. The Board had released information to the Legislative Assembly on only one occasion, prior to enactment of the Act, but subsequent requests for employee salary information had consistently been denied. Moreover, posting on the WCB’s website of employees’ names and job titles only was lawful under the Act as a means of identifying service providers to those who wished to use the Board’s services. This was a disclosure that was consistent with the “purpose for which the information was collected.”

As to MacNeill’s argument that the informational disclosure purpose of the Act should take precedence over its privacy protection purpose, Matheson found nothing in the legislation to support such a view. On the contrary, relying on the Nova Scotia Court of Appeal’s decision in Dickie v. Nova Scotia (Department of Health), [1999] N.S.J. No. 116 (NSCA), she ruled that “one must start the balancing in favour of privacy of personal information not in favour of disclosure of personal information.” Finally, the Chief Justice dismissed the applicant’s contention that public servants forfeit the right to privacy protection, holding: “If this was true prior to the passage of the Act, it no longer is. The Act covers public employees and they are entitled to the same protection of personal information as any other resident of this province.” Concluding that “the Commissioner did not err,” Chief Justice Matheson dismissed the application for judicial review.

This first judicial decision regarding Prince Edward Island’s information and privacy law adds to the growing body of jurisprudence across Canada to the effect that, whenever there is a conflict between access to information and protection of the privacy of personal information, it is privacy that must take precedence. Chief Justice Matheson’s ruling is consistent with the Supreme Court of Canada’s landmark decision in Dagg v. Canada (Minister of Finance), [1997] S.C.J. No. 63 (QL) that, “in so far as it is encompassed by the definition of ‘personal information’ in s.3 of the Privacy Act, privacy is paramount over access.” In that decision, similarly to the ruling in this case, the Supreme Court narrowly defined the job-related information that may be disclosed without violating personal privacy, limiting it to “the kind of information disclosed in a job description. It will comprise the terms and conditions associated with a particular position, including such information as qualifications, duties, responsibilities, hours of work and salary range.” Anything further than that is “information relating primarily to individuals themselves” and, the Supreme Court ruled in Dagg, is “‘personal information’ protected under the Privacy Act.”

MacNeill v. Prince Edward Island Information and Privacy Commissioner