‘Such a request appears to me to be a fishing expedition’
In dealing with the issue of substance abuse among workers, employers cannot simply conduct a “fishing expedition,” according to an Alberta arbitrator.
In an Oct. 29 hearing, Adam Latourneau denied Graymont Western Canada Inc.’s request for the pre-hearing release of an employee’s medical records and raw assessment notes in a substance abuse-related dismissal grievance.
The case arose after Graymont (Exshaw Plant) terminated Cameron Schrobbach, a member of the Alberta Regional Council of Carpenters and Allied Workers, Local Union No. 2010, for alleged dishonesty and breach of trust. The employer later added a post-dismissal allegation related to a breach of company policy on drug use.
Ahead of the arbitration hearing, the employer sought an order compelling the union or grievor to release five years of medical records or, in the alternative, the raw notes from two Substance Abuse Evaluations (SAEs) and any related third-party notes. The employer argued these records were necessary to determine “whether there was tampering by any individual and/or the Grievor in the SAE process or related to subsequent modifications to the SAE reports,” explained Letourneau.
The union strongly opposed the request, characterizing it as a “fishing expedition” and arguing that it would cause undue prejudice and breach the grievor’s privacy. The union further noted that the employer had not accessed such records at the time of termination and could question the SAE assessors directly at the hearing.
Previously, the Northwest Territories Health and Social Services Authority (NTHSSA) fired one worker for improperly accessing a patient’s medical record, according to a report.
Relevance, particularity, prejudice
Letourneau found that the employer’s request failed to meet the requirements of West Park Hospital v. O.N.A. ([1993] O.L.A.A. No 1212), which sets out a five-part test for the disclosure of medical records in arbitration:
- The information requested must be arguably relevant.
- The request must be particularized.
- The request must not be a fishing expedition.
- There must be a clear nexus between the information and the issues in dispute.
- Disclosure must not cause undue prejudice.
“First, the information requested (prior medical records) is not relevant at this juncture, in that the question of whether the Grievor had a history or issue with drug or alcohol was apparently addressed by the SAE’s invoked by the employer,” he wrote.
He added that the request for five years of records was “too vague to meet the test,” and that “such a request appears to me to be a fishing expedition, which should be discouraged at this juncture.”
On the matter of the raw SAE notes, Letourneau applied the same reasoning, finding no clear evidence of collusion or tampering and noting that the employer would have the opportunity to question the assessors at the hearing.
“The raw notes requested have no probative value at this point that I am aware of. The assessors were apparently chosen by the Employer and are supposed to be independent,” he stated.
Letourneau concluded that the employer’s requests for both the medical records and the raw SAE notes were denied.
“There was no compelling argument that such disclosure would hold probative value compared to the grievor’s privacy rights,” he said.
However, he clarified that this ruling does not preclude the employer from reapplying for such disclosure at the arbitration hearing, should relevance become apparent during proceedings.
As most HR processes move to online platforms, the quantity and quality of data on employees has increased exponentially, with a significant amount of data being held by third-party providers. The issue for employers is that the collection of unnecessary data and excess surveillance exposes them to a range of legal risks including potential breaches of privacy laws, employee disputes, allegations of discrimination and other compliance risks, according to an expert.
