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Confidentiality in the Grievance Process

CAUT Policy Statement

1. Preamble

This Policy Statement is designed to assist academic staff associations with issues of confidentiality in the grievance process. The statement describes:

i) the purpose and scope of such confidentiality; and

ii) when it may be necessary to breach confidentiality and the appropriate course of conduct if such a situation arises.

2. Confidentiality

Associations owe a duty of confidentiality to members who bring forward complaints about possible violations of the terms and conditions of employment. All communications between the association and the member that relate to the complaint must not be disclosed outside the association, principally to the employer, without the consent of the member.

3. Purpose of Confidentiality

Confidentiality benefits the grievance process and therefore all members of the bargaining unit and the association as a whole. It ensures that members feel free to discuss with the association all aspects of their concerns without fear that the information will be improperly disclosed. An assurance of confidentiality encourages honesty and candour in members so that the association can provide good advice and effectively defend the collective agreement.

4. Scope of the Duty

The association, and not the individual member, is a party to the collective agreement. The association therefore has responsibility for the handling of grievances. As such it is critically important for members to understand that confidences will be protected to the greatest extent possible, but that relevant information will have to be shared within the association by those with grievance-handling authority. This includes the executive of the association, the membership of the grievance committee or similar body and the association’s professional staff and legal counsel.

Members must further understand that as the grievance unfolds less sensitive information, such as the date of the violation, the articles violated and the faculty/school/college involved, is typically released to the broader bargaining unit as the part of the association’s legal duty of fair representation and political responsibility to provide information on its activities. Finally, members should understand that for a grievance to proceed, relevant information will have to be discussed with the employer, and that if the matter is decided by an arbitrator all relevant aspects of the case typically will become part of the public record, including searchable arbitration decision databases.

As a practical matter, the association must keep all communications with the grievor, whether oral, written or electronic, in confidence. Inadvertent breaches of confidentiality can result from the discussion of cases in publically accessible venues and from lack of care in the storage, transmission and disposal of documents.

5. Legal Foundation of the Duty

It is a general principle of law that a person who requests and receives information in conjunction with a promise of confidentiality may not use the information against the person who provided the confidential communication1.

Further, communications are protected from disclosure by law if the following conditions are met:

i) The communication must originate in a confidence that it will not be disclosed;

ii) The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

iii) The relation must be one which in the opinion of the community ought to be actively encouraged, and

iv) The injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of the litigation2.

The relationship between a member and their association in the context of a grievance has been held to meet the conditions outlined in 5.2.3 An association can therefore refuse to disclose at an arbitration hearing the contents of discussions or correspondence with the member bringing the complaint forward.

The association’s duty of fair representation to its members in the handling of grievances, which requires the association act in a manner that is neither arbitrary, discriminatory nor in bad faith, provides a further basis for protecting the confidentiality of members

6. Breaching the Duty

The grievance process inherently involves conflict.  The future of a member’s career might be at stake. In these stressful circumstances a member may make inappropriate or abusive comments. These comments may very rarely include threats against others of physical harm or death.

Should a member threaten violence, the association must balance the duty of confidentiality with the importance of protecting the safety of others. Members and associations should be aware that associations may in some circumstances be required to report threats of workplace violence or harassment.  The source and scope of the duty to report varies from province to province, so associations must be familiar with occupational health and safety / workplace health and safety laws in their jurisdiction and/or reasonable workplace policies requiring the reporting of workplace threats and/or harassment.

The question of whether it is appropriate or necessary for an association to disclose or report a workplace threat depends on the applicable provincial legislation and the circumstances of each particular case. If time permits, the association executive, grievance committee, professional staff and legal counsel may wish to confer on the proper course of action. Uncharacteristic statements made in a fleeting fit of anger may or may not trigger the reporting requirement. Reporting is advisable if there a clear risk to an identifiable person or group of persons of serious bodily harm or death and the danger is imminent4.

If a decision is made to breach confidentiality then, subject to reporting requirements in particular jurisdictions:

i) the confidential information must be relayed only to the proper authorities (for example a management representative, the police or university security) and to the intended victim; and

ii) the disclosure must be limited to the threat itself and not include other information gathered by the association in the course of assisting the member.

Approved by the CAUT Council, November 2014.

1Slavutych v. Baker [1976] 1 S.C.R. 254
2 John Henry Wigmore, Evidence in Trials at Common Law, vol. 8 (McNaughton rev.)(Boston: Little, Brown and Company, 1961) at page 527. This is the “Wigmore Test”, established by the noted American law professor and expert on evidence to determine if legal privilege should extend to a relationship. The test was adopted by the Supreme Court of Canada in R. v. Fosty [1991] 3 S.C.R. 263 (sub nom. R. v. Gruenke). Note the first criterion - that there must be an assurance that all communications within the relationship will be kept confidential.
3Re British Columbia and B.C.G.E.U., Loc. 1103, (1990) 13 L.A.C. (4th) 190 and Re British Columbia and B.C.G.E.U., (1992) 28 L.A.C. (4th) 237
4John Smith v. James Jones [1999] S.C.J. No.15