Not All Opinions Are Fit For Sharing
Friday, February 01, 2019 - Filed in: Arbitration Cases
In an era where opinions sometimes are preferred to information, it seems fit to recall that any comment by an employee on his employment relationship may have consequences. Indeed, employees remain subject to a duty of loyalty to their employer and criticism of the latter may amount to a wrongful misconduct which may justify disciplinary action.
In this regard, the case of Syndicat des chargées et chargés de cours de l'Université de Sherbrooke (SCCCUS) et Université de Sherbrooke (Denis Bernard) is interesting since it highlights that criticism may go beyond mere opinion and thus constitutes a lack of professionalism and loyalty.
The balance between freedom of expression and the duty of loyalty is particularly important in the context of social media. The case of Syndicat démocratique des salarié(e)s de la résidence St-Jude et La Résidence St-Jude (9210-9719 Québec inc.) (Vickyan Tardif) 2018 QCTA 593 concludes that comments published on social media become de facto public and that employees should therefore reflect on the consequences of exposing their dirty laundry in public.
The Université de Sherbrooke case
In this case, the Union challenged by grievance a disciplinary sanction imposed on the grievor, a lecturer, following his criticism of the professor in charge of a new course offered by the University and of the University management.
During the first class, the grievor openly criticized the course syllabus prepared by his colleague and more specifically the choice of academic material, an English book without a French equivalent. Following some complaints from students, the grievor was summoned by the University to be reprimanded. However, in the following classes, the grievor continued to express his reluctance regarding the academic content, criticizing not only his colleague's work, but also the University's decision to allow an English-only book as official pedagogic material. In particular, he allegedly described his colleague's work as "inachevé et bâclé" (unfinished and botched).
According to the employer, such comments displayed a lack of professionalism and loyalty. Accordingly, the employer imposed a suspension equivalent to two classes, without pay.
The Union challenged this sanction by grievance, arguing that freedom of expression guaranteed the grievor's right to express his opinions. In particular, the Union highlighted the importance for a lecturer to be able to express his opinion in regards to academic freedom. It should be noted that the collective agreement expressly provided the lecturer's right to express his opinion.
However, according to the Arbitration Tribunal, freedom of expression is not absolute and must remain subject to the duty of loyalty of an employee. In the present case, according to the arbitrator Maureen Flynn, the criticisms made could not be qualified as a personal opinion, but were rather a refusal to submit to professional directives.
The Arbitration Tribunal thus concluded that these actions were disloyal and unprofessional, undermining the credibility and authority of the professor and the University. The grievor's actions were not consistent with the faithful and loyal performance of his work. The grievance was therefore rejected.
The Résidence St-Jude case
The Arbitration Tribunal heard a grievance challenging the dismissal of the grievor, a nursing assistant in a seniors' residence, following comments made about her working conditions posted on the Facebook page of one of her former colleague.
The grievor's comments strongly criticized the work climate within the residence. The grievor pointed out that the conditions had been "l'Enfer" (hell) for some time and also denounced the abuses of power by various managers. More specifically, the grievor also denounced the behaviour and management of the director, calling him a "criss de négatif" (a very negative person) doing "plus de mal que de bien" (more bad than good) and showing "comment il est insensible et intimidateur" (how he is insensitive and a bully).
After being informed of these comments, the director dismissed the grievor, considering that the content of her comments was damaging to the reputation of the residence and its management and could harm the work environment. The comments made were thus in conflict with the duty of loyalty set out in the Civil Code of Québec and the company's Code of Ethics, which prohibited the use of social networks to discuss about the Residence and any conflict within the Residence.
However, the grievor defended herself by alleging that she believed the comments to be private and confidential. According to the Arbitration Tribunal, anything posted on social networks is not private, but public, since the author losses control over said postings and multiple people can have access to them. Consequently, the mere belief that these postings were private could not excuse the grievor's comments.
The Arbitration Tribunal concluded that, although all individuals have the right to freedom of expression, an employee must respect a duty to be respectful and loyal to his employer. As per the arbitrator Jean-M. Morency, the language used was surprisingly virulent and a sanction was therefore justified.
According to the Tribunal, the grievor's conduct amounted to a severe lack of judgment and a gross error, but the trust relationship was not breached. Indeed, the arbitrator considered the lack of premeditation, the belief that the comments were private, as well as the immediate withdrawal of the comments and the subsequent apologies. In addition, the arbitrator found that the lack of evidence of damage was a mitigating factor. The arbitrator thus cancelled the dismissal and substituted it with a seven-month suspension, without pay.
The employee's obligation of loyalty, civility and professionalism requires that the employee refrains from making irreverent criticisms of his employer, particularly on social networks. Therefore, an employer may be justified to sanction an employee for comments that are damaging to the reputation of the company or its management.
That being said, it appears from the arbitral case law that each case will require a factual analysis in order to balance the employee's freedom of expression against his or her obligation of loyalty.
Note: This a reprint of an article by Constantin Schiavon of Stikeman Elliott LLP.