Canada: Criticizing Your Employer: A Risky Business?

In labour relations, employees are frequently the subject of constructive criticism from colleagues and superiors. They may also be tempted at times to question some of their employer's decisions or to criticize the attitude or managerial approach of their supervisor. In the employer-employee relationship, when does criticism go from being acceptable to being an act potentially warranting disciplinary measures?

The problem

Section 2 of the Canadian Charter of Rights and Freedoms and Section 3 of the Quebec Charter of human rights and freedoms state that everyone has the right to the freedom of opinion and the freedom of expression. However, the exercise of these fundamental rights is not absolute. Under Article 2088 of the Civil Code of Québec, employees are bound to carry out their work with prudence but to also act faithfully and honestly (i.e. have a duty of loyalty).

Employees who publicly make false or defamatory statements about their employers commit a serious offence that could permanently sever the relationship of trust. A very serious breach of the duty of loyalty can even occur in cases where the criticism is not public, such as when statements are made during a meeting of employees or in a letter sent to the employer's executive officers. Similarly, criticism of a line supervisor may also be a breach of the duty of loyalty, especially if the sole purpose of such criticism is to harm the supervisor.

Disciplinary measures

However, a breach of the duty of loyalty does not necessarily result in dismissal, because there is no automatic disciplinary measure in this type of situation. The facts and circumstances of each case must be examined in light of several factors to assess the gravity of the employee's actions.

For example, in a recent decision,1 the arbitrator Nathalie Faucher upheld the dismissal of a bus driver employed by a seniors' residence who had organized a meeting with the residents to inform them of the disciplinary action taken against her for accepting tips from them. The arbitrator ruled that holding such a meeting was a serious breach of her duty of loyalty as there was no substantive reason for making the disciplinary notice public and such a meeting was liable to harm the employer's reputation with the residents and cause it prejudice. Because the employee denied any fault and did not regret her actions, the relationship of trust could not be restored and the dismissal was therefore justified.

In another decision,2 the president of a union was dismissed for going to the media with allegations that there were misappropriations of resources and situations of abuse of trust and fraud within the school board she worked for. During a special meeting, the plaintiff had a communiqué distributed in which the school board's officers were criticized for exercising poor management and being too lax. While recognizing that a union may object to an employer's administrative policy, the arbitrator stressed that the employee's status as union president did not mean she had no duty of loyalty to the employer.  In the case in question, the arbitrator found that the employee's statements had gone beyond legitimate opposition as the allegations were serious, not supported by any credible source and a direct attack on the reputation of the employer and its executives.

The dismissal of an employee who had called the police in order to falsely accuse a representative of the employer of trying to harm him was also upheld,3 as were the dismissals of employees who had wrongly alleged that a coordinator was psychologically harassing several employees.4 In both cases, the tribunals imposed penalties for maliciously laying false and defamatory charges.

However, in Syndicat des employées et employés de métiers d'Hydro-Québec, section locale 1500 et Hydro-Québec5, the arbitrator Joëlle L'Heureux substituted a two-year suspension for the dismissal imposed on a security guard who had sent the employer's executive officers a letter containing alarmist statements regarding security, which were based on unverified allegations that turned out to also be unfounded. The arbitrator determined that the plaintiff had irresponsibly disclosed information concerning a situation about which he had only limited personal knowledge while bypassing the internal chain of command, but also that there had been no real risk of harm to the employer's reputation. Although the plaintiff had betrayed his manager's trust and failed to fulfill his duty of loyalty to the employer, the situation was not sufficiently serious to conclude that the relationship of trust had been permanently severed. While it was true that the plaintiff's criticism was based on unverified allegations, it was not based on allegations that he knew to be untrue. In addition, it was an isolated, ill-considered act, and, above all, the contents of the letter did not attempt to impugn the manager's integrity.

In another decision, again involving Hydro-Québec,6 the arbitrator Jean-Pierre Lussier changed a Hydro-Québec engineer's dismissal to a six-month suspension—the engineer had provided a reporter with information about a conflict of interest situation involving contractors, certain facts about which had not been verified and were untrue. The arbitrator found that the plaintiff had committed a fault by going to a reporter when he had not exhausted all available internal remedies for resolving such an issue. Nonetheless, the plaintiff had acted in good faith and had serious grounds for exposing the situation.

Lastly, case law and the lawmakers have recognized an employee's right to make a public disclosure in certain exceptional circumstances subject to very specific conditions.7 The term "whistleblower" is sometimes used to refer to a person who brings illegal or unacceptable situations to the attention of official bodies, associations or the media.

Conclusion

In conclusion, the right and freedom of expression of employees is limited by their duty of loyalty. Consequently, employees who criticize their supervisors or employers publicly or express such criticisms to their work colleagues may be disciplined for their behaviour, but the severity of the disciplinary action taken may vary considerably depending on the circumstances particular to each case.

Footnotes

1 Syndicat québécois des employées et employés de service, section locale 298 (FTQ) et 9103-9198 Québec inc. (October 18, 2011) 2011 EXPT-2241, AZ-50801781 (TA), Me Nathalie Faucher, arbitre.

2 Syndicat du personnel de soutien en éducation de la région de Laval (CSQ) et Commission scolaire de Laval (February 13, 2002), DTE 2003T-241, AZ-03142029 (TA), Mtre Fernand Morin, Chair.

3 Travailleuses et travailleurs unis de l'alimentation et du commerce, section locale 500 et Super C Victoriaville (December 9, 2011), DTE 2012T, AZ-50812903 (TA), Mtre Huguette April, Arbitrator.

4 Syndicat québécois des employées et employés de service, section locale 298 (FTQ) et CHSLD Vigi Reine Élizabeth (March 23, 2007), DTE 2007T-472, AZ-50429300 (TA), Mtre Pierre Laplante, Arbtrator.

5 Syndicat des employées et employés de métiers d'Hydro-Québec, section locale 1500 et Hydro-Québec (May 28, 2012) DTE 2012T-433, AZ-50860720 (TA), Mtre Joëlle L'Heureux, Arbitrator.

6 Hydro-Québec et Syndicat professionnel des ingénieurs d'Hydro-Québec (SPIHQ) (January 18, 2012), DTE 2012T-195, AZ-50832379 (TA), Mtre Jean-Pierre Lussier, Arbitrator.

7 Société canadienne des postes et Syndicat des travailleuses et travailleurs des postes (July 13, 2005), DTE 2005T-692, AZ-50324230, Mtre Guy E. Dulude, Arbitrator.

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