Database vendor not called as witness to arbitration hearing
When an employee at the Hawkesbury and District General Hospital in Hawkesbury, Ont. tried to access a patient’s file, she was blocked by the computerized records system as it showed another employee was currently in the file.
Céline Thauvette had worked at the hospital for 16 years with no discipline but on Sept. 14, 2018 around 10 a.m., she was advised by fellow employee Michelle Claude that she needed to get into a newborn baby’s file to change the name of the treating doctor.
The Anzer database system was designed to allow only one person at a time to open files, so changes were not affected by more than one employee.
After Claude saw a pop-up window advising her that Thauvette was in the record, she phoned her (Thauvette worked in the mental health and addiction area of the hospital, in a separate building away from where Claude worked).
Thauvette denied ever being in the file and after she was notified, she went into the patient’s file to see if there was any reason for the message appearing.
(Under Personal Health Information Protection Act rules, employees were not allowed to access any patients’ records, unless there was a valid reason to do so. The hospital had a similar policy in place).
After Thauvette opened the file, she spoke to her supervisor, Anne-Marie Lefebvre, who was also designated as a “super user” of the Anzer system. Lefebvre opened the file and also found no reason for the apparent anomaly.
An audit report produced by the hospital’s IT department showed that Thauvette opened the patient’s file at 10:03 a.m. Claude attempted to open the file at 9:55 a.m. and again at 9:59 a.m. before she phoned Thauvette, who immediately alerted the IT department about a potential system malfunction.
An investigation was launched by the employer and on Sept. 24, Imrana Jeoffrey, chief privacy officer, interviewed Thauvette who continued to maintain that she only opened the file after being called by Claude. Thauvette suggested the incident was most likely the result of a “glitch” in the computer system.
Claude repeatedly tried to open the file but was rebuffed until 12:12 p.m., when she was finally able to get in.
On Nov. 23, Thauvette was given a 10-day unpaid suspension, but it was ultimately reduced to five days. The union, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), grieved the discipline.
The union argued that an audit didn’t establish that Thauvette was in the file. As well, by waiting so long to impose the suspension, this was unfair to her, said the union.
Arbitrator Michael Bendel agreed. “The suspension is set aside. I order the employer to compensate the grievor for wages and benefits lost as a result of the suspension.”
The employer’s actions were also chastised by Bendel. “While the above is a sufficient basis to allow the grievance in full, I would also have drawn an adverse inference against the employer, if it had been necessary to do so, from its failure to call as a witness the Anzer consultant who had been involved in the investigation of the grievor’s alleged wrongdoing. This consultant had relevant evidence to give, not just because of any expertise he might have had, but mainly because he appears to have been involved in the investigation in a senior capacity. The failure to call him as a witness — when the employer knew from the beginning that Anzer’s reliability was being disputed by the grievor — raises the large, unanswered question whether the investigation had revealed some issue with the functioning of the software.”
Thauvette’s behaviour strongly supported her claim of innocence, said Bendel. “I note that [Thauvette] made a report to IT within minutes of learning of the problem being experienced by Claude. It seems to me that if [Thauvette] had indeed breached patient confidentiality, as alleged by the employer, making a report to IT would have been the last thing she would have wanted to do since it would inevitably have drawn attention to her misconduct which, otherwise, might well have passed unnoticed.”
Reference: Hawkesbury and District General Hospital and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Michael Bendel — arbitrator. Geneviève Tremblay-Tardif for the employer. Richard Leblanc for the employee. Aug. 8, 2019.
