by Stéphane Fillion and Laïla Tremblay
In Canada, many cases have considered and limited an employer’s freedom of expression during collective bargaining. But what about the freedom of expression of the employees during that period? Is it similarly limited?
In Québec (Procureure Générale) v. Commission des relations du travail, division des relations du travail (available in French only), the Superior Court of Québec discussed the limits of employees’ freedom of expression in this situation. In its decision, the court reversed a decision of the Commission des relations de travail (the Board) that found that an employer that prohibited its employees from sending a union-related message using their work email address infringed on their freedom of expression.
Facts
During collective bargaining between the government of Quebec and the Association professionnelle des ingénieurs du gouvernement du Québec, the Association asked its members to add a 15-line electronic signature to their emails intended to mobilize members and rally support for their pay demands. The signature was sent automatically by the engineers in their email correspondence, and read as follows:
(Translation) Important message from the Government of Quebec’s engineers currently in negotiations
In 2001, the report of the Anti-Collusion Squad highlighted that the loss of engineering expertise was the government’s “primary factor of vulnerability.” Rebuilding that expertise calls for paying salaries that are competitive with those paid by major employers like Hydro-Québec or the federal government. The Institut de la statistique du Québec confirms that government engineers’ total compensation lags behind what is paid by employers in the “other public” sector by more than 40%.
Instead of closing that gap, the government is proposing to widen it.
We are concerned about protecting the public and providing it with a high quality service. We believe that the sustainability of public assets and the sound management of public funds call for recognition of our expertise.
Our signature is worth more!
When the government of Quebec saw the text in messages to outside parties, it asked engineers to cease this practice or be subject to disciplinary measures. The government felt that the text could undermine public trust in the province’s infrastructure and was an attack on the government’s reputation, a breach of the duty of loyalty, and use of equipment supplied by the employer to exert pressure in negotiations.
Board decision
The Board held that the right to freedom of expression had to be balanced against property rights. The Board concluded that the message conveyed by a modern method, such as an electronic signature, could be likened to a message conveyed by a traditional method, such as employees wearing buttons.
The Board referred to the arbitral award in Syndicat des travailleuses et travailleurs des postes et Société canadienne des postes (Poste Canada) T.A.,2006-09-27 (Rodrigue Blouin) in which the board ordered Canada Post to permit employees to wear buttons with pro-union messages (such as “Your public postal service delivers the goods”) so as not to infringe on their freedom of expression. Citing that decision, the Board concluded that freedom of expression prevailed over property rights.
Judicial review
On judicial review, the court concluded that the Board’s decision was unreasonable and not within the range of the acceptable conclusions. While the court acknowledged the importance of employees’ fundamental rights, it noted that it was also important to recognize their limits. In the court’s view, (translation) “The message conveyed must be relatively discreet, non-intrusive, […] be expressed in proper and neutral terms, and not jeopardize, without fundamental reasons, business relations with clients and suppliers.”
The court concluded that the message conveyed by the engineers did not meet these guidelines. The message was not discreet as it was 15 lines long and was not a neutral message but rather offensive and undermined public confidence in the competence of the government engineers. The court also pointed out that the people to whom the message was addressed, whether clients or suppliers, were a captive and identified audience. As such, this situation was significantly different than wearing a button bearing a succinct message.
Takeaway for employers
This case out of Quebec illustrates that employees must exercise their right to freedom of expression reasonably, even during collective bargaining, especially when using the employer’s equipment. Factors considered when determining reasonableness include respect for the employer’s reputation and ensuring that clients’ confidence in the business or organization is not undermined.
Ultimately, the words used must be objective. Based on this decision, employers may ask employees to remove a message that does not meet the court’s guidelines. As this case is currently under appeal, we will keep you informed of future developments.
On April 24, Fasken Martineau attorneys Gilda Villaran and Cindy Switzer will present Canadian Work Permit Requirements: How to Manage Temporary Work Permits, Business Travel, and Relocation, a 90-minute webinar on how Canada’s immigration system runs with respect to recruiting and employing foreign workers. Click here for more information or to register.