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Document
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I93-009M
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Institution/HIC
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INVESTIGATION I93-009M A MUNICIPAL SCHOOL BOARD
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Summary
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INTRODUCTION Background of the Complaint This investigation was initiated as a result of a complaint concerning a municipal school board (the Board). The complainant had been employed by the Board on a casual basis as an occasional teacher and had completed various short-term occasional teaching assignments between August, 1989 and December, 1992. In October, 1992, he applied for a long-term occasional position with the Board, and was selected as the successful candidate out of the job competition, in December, 1992. He was then terminated from this long-term occasional contract in January of 1993. The complainant was asked by the Assistant to the Board's Staffing Superintendent to provide the Board with the names of individuals who could be contacted by the Board for reference purposes. The Assistant said that the complainant told her the names of seven individuals, but he was uncertain if they were still employed at their respective boards, or of their current whereabouts. She recorded the list of referees on a page from a notepad, and told him that they would be contacted. She then passed the list on to the Staffing Superintendent. The Staffing Superintendent found that of two of the referees for the [named board], one was not known at the board, and one was a retiree. However, she wished to obtain a reference from the [named] board, and later, at a meeting of Staffing Superintendents, in a personal conversation, the Staffing Superintendent asked the Superintendent of the [named board] if there was someone he might know whom she could contact to obtain a reference for the complainant. He told the Staffing Superintendent that the complainant's contract had been terminated by his board, and that an arbitration decision was available. He did not provide any details to the Staffing Superintendent. The Staffing Superintendent had not been previously aware that the complainant's prior employment with the [named board] had been terminated for unsatisfactory performance. She subsequently received a copy of the arbitration decision from the Board's lawyer. The arbitration decision stated in part: Thus, it is the conclusion of this board of arbitration that the Board was correct in its action of dismissal and further that there is no evidence before this board which could justify reinstatement... We are concerned that respect for the spirit of the document [the collective agreement] was not reflected by the speed with which the administration and the Board acted in the last week of April and the month of May. That part of the process is seen by us as "unjust" and warrants a remedy for the grievor which remedy can only be by way of compensation since it would be wrong to reinstate. The grievor in his appearance before us does not present as one who is able or prepared to listen and abide suggestions for improvement and based on the evidence before us it would not be in the best interests of the student to place him in a classroom. After reading the arbitration decision, the Staffing Superintendent concluded that it was inappropriate to continue the complainant's long-term occasional assignment or to keep his name on the Board's occasional teacher list. The complainant received a letter dated January 11, 1993, from the Board's Staffing Superintendent. The letter stated: I have recently become aware of an arbitration decision confirming the actions of the (named school board) in terminating your contract for unsatisfactory teaching performance. The Chair of the Arbitration Board concluded "it would not be in the best interests of the students to place him in a classroom". The [Board] concurs with this judgement; accordingly I am not prepared to employ you as an occasional teacher. Had this information been made available to the Board earlier, you would have not been accepted on our long-term occasional teacher list, and of course, would not have been an acceptable applicant for a long-term occasional assignment. Accordingly, your long-term occasional assignment at [named school] is hereby terminated, effective today, and your name is hereby removed from our list of occasional teachers. The complainant believed that his privacy had been breached when the Board collected information about him from the arbitration decision, and used it to terminate his contract and remove his name from its list of occasional teachers. In his view, the information had been obtained surreptitiously, and had been used without his authorization. He was also concerned that medical information in the arbitration decision had been used by the Board in making its decisions. He stated that he had worked for the Board since 1989 as an occasional teacher, with excellent performance reports. The Staffing Superintendent stated that she had not taken any medical information from the arbitration decision into account in making the termination decision. Although she had considered the complainant's satisfactory performance reviews, her decision had been influenced most by the statement in the arbitration decision that, "it was not in the best interests of the students to place him in the classroom". Issues Arising from the Investigation (A) Did the arbitration decision contain the complainant's "personal information" as defined in section 2(1) of the Act ? (B) Did section 27 of the Act apply to the record of the arbitration decision? (C) Was the personal information collected in accordance with section 28(2) of the Act ? (D) Was the personal information collected in accordance with section 29(1) of the Act ? (E) Did the Board provide proper notice for the collection of the personal information in accordance with section 29(2) of the Act ? (F) Was the personal information used in accordance with section 31 of the Act ? In its response to our draft report, the Board raised an additional issue by requesting that the compliance investigation process be stayed pending the conclusion of grievance/arbitration proceedings concerning the Board's decisions to terminate the complainant's long-term occasional teaching assignment and remove his name from its list of occasional teachers. In making its request, the Board cited several reasons including: the prejudicial effect that our report might have on the grievance/arbitration proceeding; the principle that multiple legal proceedings ought to be discouraged; section 9 of the Ontario Evidence Act ; and the "tenor" of our investigation reports. We have carefully considered the Board's request but are not persuaded that a stay is warranted in the circumstances of this case, for the following reasons: First, although the privacy investigation and grievance arbitration proceedings arise from similar facts, they do not address the same issues. Our investigation addresses whether the Board has complied with the privacy protection provisions of the Act , while the grievance/arbitration is concerned with whether the Board acted appropriately, in accordance with its collective agreement, in terminating the complainant's long-term occasional teaching assignment and removing his name from its list of occasional teachers. Secondly, our investigation report and the recommendations it contains are not binding on the decision maker in the arbitration. The investigation report simply sets out our views on whether the Board had complied with the privacy protection provisions of the Act . Section 9 of the Ontario Evidence Act provides a wit
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Legislation
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MFIPPA
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2(1) personal information (b)
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2(1) personal information (e)
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2(1) personal information (g)
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2(1) personal information (h)
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29(2)
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Section 31
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Subject Index
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Published
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Aug 11, 1993
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Type
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Privacy Complaint Report
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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