Workplace Incivility And Union Immunity: When To Impose A Disciplinary Measure

Employers face a very real challenge in sanctioning the incivility of employees performing union duties. A recent decision by the Administrative Labour Tribunal in Quebec (the "Tribunal" or "ALT")[ 1] is yet another example of how difficult it is to impose disciplinary measures to address the uncivil conduct of union representatives acting under the protection of union immunity.

Background

On February 10, 2025, the employee, who was both the president of the employee union and an employee of the employer, was suspended without pay for five days. This disciplinary measure was issued following an altercation between the employee and his foreman at a team meeting on February 3, 2025, during which the employee challenged the assignment of vacant positions, claiming they violated the collective agreement. The altercation took place in front of a dozen or so co-workers, during which the employee approached his manager, raised his voice and pointed his finger at her.

The manager stated that she left the workplace in tears, explaining that she felt humiliated and distressed. The employee was immediately suspended pending an investigation. The following week he received notice of the disciplinary action in a detailed letter outlining several acts of insubordination that occurred between January 20 and February 3. The incident involving his manager on February 3, 2025, was also mentioned in the letter and covered by the disciplinary measure.

The employee filed a complaint under section 16 of the Labour Code,[2] alleging that the suspension constituted a reprisal for exercising a protected union right.

The Administrative Labour Tribunal's Decision

In its decision, the Administrative Labour Tribunal examined the principles underlying sections 15 and 17 of the Labour Code, namely:

• Section 15 prohibits taking disciplinary action against any employee who exercises a right under the Code; and
• Section 17 establishes a presumption in favour of an employee who exercises a right under the Code and places the onus on the employer to prove that any penalty imposed was for good and sufficient reason.

In this case, the Tribunal found that the employee had been acting within the scope of his duties as president during the altercation with his manager. In the Tribunal's view, raising his voice and pointing his finger while challenging the application of the collective agreement did not exceed "acceptable" norms in a labour relations context. In support of its finding, the Tribunal cited other decisions in which "colourful" language was deemed admissible and found to be "within the limits of the immunity afforded to union representatives."

The case law cited in the matter at hand, and reiterated by the ALT, shows that the purpose of union immunity is to allow union representatives to engage with employers "as equals," without fear of disciplinary action.

In its reasons, and although the disciplinary measure was also issued for other instances of insubordination, the ALT concluded that the suspension imposed on the employee was partly motivated by his actions on February 3, which was sufficient to invalidate the disciplinary measure. In doing so, the ALT relied on the 'poison analogy' articulated by the Supreme Court of Canada in a previous decision[3]. Accordingly, the grievance was allowed and the five-day suspension was cancelled.

Takeaways for Employers

This decision, which is part of a recent line of TAT rulings in which disciplinary measures have been rescinded for incivility by union representatives,[ 4] highlights the ongoing tensions in unionized workplaces and the challenges employers face when trying to address employee misconduct related to harassment or incivility.

In seeking zero tolerance for psychological violence, employers are expected to make significant efforts, such as through training, policies and interventions, to foster healthier workplaces. Accordingly, incivility protected under the umbrella of union immunity raises legitimate questions about the means available to employers when applying disciplinary actions to meet their legal obligations.

In light of recent case law developments, before imposing any disciplinary measure for incivility, HR professionals and managers should therefore:

1. ensure that the alleged acts are not part of the representative's union activities;
2. ensure that the letter imposing the disciplinary measure separately addresses each alleged incident—issuing a separate letter/measure for each incident date and separating the incidents can be an effective solution; and
3. train managers on the union context, labour relations and managing difficult or uncivil conduct by representatives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.