An Employer’s Right to Free Speech

As many of you know, the right to freedom of expression is firmly entrenched in both our charters and human rights acts.

The Québec Labour Code contains a sections which have been held in the past to legitimately restrict an employer’s right to full and freely express his or her opion. This is particularly the case with regard to sections 12 and 13 of the Code by which an employer is prohibited from interfering in the activities of a union and/or intimidating employees regarding their union activity. Recently, some commissioners from the Québec Commission des Relations du Travail has taken a very restrictive right to an employer’s right to freedom of speech – an approach not inline with past decisions.

For example, in the decision rendered by Commissioner Pierre Bernier in Syndicat québécois des employées et employés de service, section locale 298 (FTQ) c. Les Services à domicile de la région de Matane (“Services à domicile Matane“), the dispute revolved around an information meeting held for the benefit of all the employees intended to inform and update them on various work related topics. The CEO was asked about the status of negotiations between the company and the collective bargaining unit. Rather than answer the question directly, the CEO opted to publicly defer the question to the vice-president of the union who then “put on the spot” to respond. She chose not to respond.

The president of the board of directors of the employer and the CEO informed the employees of the status of the negotiations, while also taking the opportunity to mention that the decision to suspend negotiations had been taken by the union. The Commissioner was extremely concerned with the context in which the event took place and the information given by the employer. He focused particularly on the fact that the meeting took place some two weeks before the expiration of the collective agreement… a tense period where negotiations had broken down.

According to the Commissionner, the CEO’s behavior amounted to interference in the union’s affairs and as such constituted a form of unlawful interference. In the Commissioner’s view, the employers not only failed to respect the rules of secrecy incumbent upon members of the union’s executive committee but also triggered a flurry of concerns from unionized employees. Accordingly, the Commissioner ordered the employer to stop interfering in union’s affairs.

In another case, Syndicat des professionnelles d’organismes communautaires du Bas St-Laurent (CSN) c. Atelier de travail Jeunesse 01 (Carrefour Jeunesse-Emploi Rimouski-Neigette) (“Youth Workshop”), the issue concerned a response to a press release issued by the union, which harshly criticized the employer. The employer subsequently addressed and denounced the press release during a weekly meeting with employees. Shortly thereafter, a union advisor gave a radio interview and accused the employer, a nonprofit organization, of wasting public funds in a recent dispute resolution giving rise to poor working relationships. In response to these criticisms, the employer issued a “communiqué” to all union members condemning the union’s media campaign and prohibiting employees from speaking to journalists about the pending litigation.

The Commissioner held that the employer had targeted employees’ emotions by making negative remarks about the union’s actions. Moreover, the employer, by prohibiting the employees from speaking with journalists, suppressed, in the Commissioner’s view, a legitimate means employee action. Lastly, when the Commissioner held that when the employer raised the possibility of resorting to cutbacks as a result of a grievance filed by the union, the employer had encouraged employees to side against their union.

The decision in Services à domicile Matane seems to cast doubt on an employer’s right to honestly answer questions regarding the status of negotiations – a right which had been generally upheld until now. Moreover, the decision Youth Workshop offers a very restrictive interpretation of an employer’s right to comment on false statements made by union representatives. Is it not fair to allow an employer to respond publicly (and factually) if it is unfairly and publicly maligned by its union?

Do you think that these decisions unfairly restrict an employer’s right to free speech? What is the situation in the rest of Canada?

I would add that in a recent interlocutory decision (rendered after the two cited above), Association du personnel administratif professionnel de l’Université Laval inc c. Université Laval, another commisioner seems to go back to the previous line of case law, concluding that an employer could factually respond to a union’s allegations.