Two recent decisions by arbitration boards demonstrate the importance of integrity in the employment relationship. The dismissals of employees with over twenty years of service were upheld due to the breach of trust arising from the seriousness of the underlying offences and subsequent dishonesty in the course of the investigation.
Health Sciences Association of Saskatchewan v Saskatchewan Association of Health Organizations, 2014 CanLII 9578 (SKLA) involved a physical therapist with 25 years of clean service who was dismissed for significant breaches of confidentiality. The Employer had in place a number of significant policies governing confidentiality and access to personal health information including access to health records contained in a province-wide digital database. The grievor at first claimed she had not read the applicable policies, but under cross-examination she admitted having read at least the one she had previously signed an acknowledgment that she read and understood it. The Union alleged that the Employer had not properly trained employees about confidentiality of health information.
The Employer had conducted an investigation and audit of the health records database after receiving an allegation that the grievor had accessed the health information of persons who were not her patients. An audit revealed that over the period of approximately 9 months the grievor had accessed the health records of 99 persons on multiple occasions in breach of the confidentiality policies including past and present coworkers, supervisors, senior management of the Employer, immediate and extended family, as well as well known, prominent members in the community.
At the hearing, the grievor's main defence was that she did not know that it was wrong for her to personally access the information as long as she did not share it with others. The Panel could not accept this explanation. It was not consistent with what she had said to management witnesses when they had investigated the matter with her and the Panel simply did not find it to be credible. The grievor's claim that she had accessed the records for "learning, medical curiosity and the need to have a better understanding about diagnosis" did not assist her credibility given many of the persons whose records were accessed either did not have a medical predisposition or the medical conditions were not within the grievor's area of specialization.
The Panel referred to prior arbitral law that has established that the "violation of confidentiality rules is considered unethical conduct that calls into question the trustworthiness of the employee." It then made some significant findings with respect to the grievor's conduct:
"There is a pattern of repeated breaches with little, if any, respect for the confidentiality of person health information."
"The sheer magnitude of the confidentiality breaches perpetrated on such a diverse group of the public, at times on a daily basis over an extended period of time, is so appalling that we are not prepared to set aside the discharge."
"The most serious issue is this case is the trust in the employer/employee relationship, which is irreparably damaged. The trust is broken and lost; the pieces cannot be put back together again. The employment relationship is no longer viable."
Closer to home, the BC Labour Relations Board affirmed a decision of Arbitrator Sullivan who upheld the dismissal of a 23 year employee with only small blemishes on his work history: City of Kelowna v Canadian Union of Public Employees, Local 338, 2014 CanLII 16967 (BCLRB); upholding [2014] B.C.C.A.A.A. No. 29). A co-worker complained to the Employer that the grievor had driven his car directly toward him in a parking lot and nearly hit him. The grievor claimed during the investigation and at the hearing that he had done nothing wrong, but rather he had simply driven out of the parking lot in his normal slow manner. The witness accounts favoured the co-worker's allegations. Therefore, the Arbitrator found that the grievor had engaged in a serious offence of driving toward a co-worker in a threatening and aggressive manner. The Arbitrator also agreed with the Employer that the grievor's dishonesty during the investigation had breached the trust that was fundamental to the employment relationship:
"The grievor's untruthful denial during the Employer's investigation up to and including these arbitration proceedings significantly exacerbates his wrongdoing, and effectively poses a significant bar to a continued employment relationship that requires a high degree of trust."
The Arbitrator accepted that the grievor's position as a carpenter on the road crew required a high degree of trust because he was often unsupervised and drove City vehicles. In the Saskatchewan case, the Panel had also accepted that employees in the health sector are held to a higher standard than those in other occupational fields. However, employers should still be able to expect honesty from all employees.
These cases serve as clear reminders to employees that misconduct demonstrating a lack of integrity and dishonesty toward the employer can lead quickly to the end of employment.
For employers these cases also demonstrate the importance of thorough investigations. All persons involved must be interviewed and the respective "stories" documented. Where there are different versions of events that cannot be reconciled, credibility determinations must be made. While not every act of dishonesty will justify termination of employment, dishonesty during an investigation may be a significant factor ultimately tipping the case toward an irreparable breach of trust.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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