In a harassment grievance, the union wanted to see the report the employer had compiled to justify its discipline. The employer refused, claiming solicitor-client provilege because the investigator was a lawyer. The arbitrator found the report was not legal advice and did not benefit from the privilege.
Pursuant to a grievance alleging a worker was unjustly disciplined in retaliation for union activity, the union made a preliminary bid for access to investigative documents.
The case concerned a Charge Nurse at a hospital who was disciplined by her employer following allegations of bullying and harassment.
On March 14, 2011, the employer notified the nurse by letter that she was being issued a written warning. She was also told she was to be removed from her role as Charge Nurse.
The letter said an independent investigator retained by the employer had conducted an investigation into bullying allegations. The letter said the investigation had substantiated the allegations and concluded the nurse had engaged in bullying and harassing behaviours contrary to hospital policy.
The union grieved the discipline, asserting the employer’s actions against the nurse were retaliation. The union then sought an order requiring the employer to produce communications related to the investigation. In particular, the union wanted access to certain communications between the investigator — who was a lawyer — and some members from the employer’s human resources staff and management.
The employer argued the communications in question were not relevant and, in any case, they were protected by solicitor and client privilege.
The Arbitrator disagreed.
Independent investigator
It was common for employers to hire independent investigators to look at such complaints within the framework of the employer’s existing workplace harassment policies.
Though not a requirement, it was not uncommon for these investigations to be conducted by lawyers. However, the Arbitrator said, whether or not the investigator was a lawyer, his or her chief role in the process was to make findings of fact.
“Some individuals who conduct these investigations as independent third parties are lawyers; some are not. I see no reason to distinguish between these two groups if the purpose for which they were retained is the same, of investigating events to make findings of fact. I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.”
The investigator was hired for no other reason than to investigate the allegations, the Arbitrator said, therefore the communications between the hospital and the investigator concerning the investigation were not privileged.
The documents in question were also relevant to the union’s case, the Arbitrator said.
The employer had argued the documents were not relevant because it was not relying on the report for the arbitration or calling the investigator to testify.
The Arbitrator again disagreed. The employer already had relied on the investigative report. The letter to the nurse referenced the report as providing the basis for the discipline. There was no evidence the hospital had conducted another investigation that would have provided the basis for the discipline that was imposed.
Allegations of retaliation
As well, the Arbitrator said, “the Union is alleging that the Hospital’s actions in this case are motivated by the Grievor’s past union involvement. Such allegations go to the heart of not only what actions the Hospital took but the reasons behind those actions. As such, the Union is entitled to consider all of the Hospital’s actions in that respect.”
The employer was also ordered to produce a number of other documents.
Of interest to the union were documents in the personnel file and employment record of the worker who had complained about being harassed by the grievor. It was the union’s contention the current complaint was related to an earlier problem between the two workers that resulted in discipline for the worker who was now filing the harassment complaint.
The employer was also ordered to produce documents related to the grievor’s preparation and production of a summer work schedule.
Reference: North Bay General Hospital and Ontario Nurses’ Association. Jasbir Parmar — Sole Arbitrator. Shane Smith for the Employer. Elizabeth McIntyre for the Union. Oct. 13, 2011. 5 pp.
