Canadian Employment Law Today

6 | | May 28, 2014 May 28, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends/Ask an Expert Cases and Trends/Ask an Expert of friends and acquaintances the DFO knew were connected to poaching and drug traf- fi cking. In 2006, one of these individuals was subject to a surveillance operation that had to be aborted because of Nicolas' involve- ment. e subject was suspected of poach- ing and was observed snorkeling, but Nico- las made himself visible on the shore and the subject came out of the water without any fi sh. Nicolas claimed his radio wasn't work- ing when a co-worker tried to tell him he was in plain view for the subject. After the incident, other fi shery offi cers became suspicious that Nicolas was provid- ing information to friends so they wouldn't be caught poaching. Nicolas was told if he found himself in a confl ict of interest again, he was to notify his supervisor, as offi cers would be put at risk if information on inves- tigations was leaked. In March 2008, a Quebec provincial po- lice offi cer informed the DFO he didn't trust Nicolas and suspected he was feeding infor- mation to poachers and drug traffi ckers. e DFO didn't say anything to Nicolas because it believed it didn't have all the information. Management agreed to wait until they had more evidence before acting, though Nico- las' supervisor tried to share as little infor- mation as possible with him. However, this made it diffi cult to work, since there was only a small number of fi shery offi cers on the islands. In September 2009, the Quebec provin- cial police informed the DFO that Nicolas had stashed illegal material in his home for a drug traffi cker two years earlier and he had been seen in June 2009 associating with a known drug traffi cker. Another report the following month said Nicolas was a drug user and used codes to tip off poachers and drug traffi ckers regarding DFO activities. Finally, in October 2009, an investigation into Nicolas' conduct was launched. Nicolas was suspended without pay for the duration of the investigation. e investigation reached the conclu- sion that Nicolas had given information to poachers and drug traffi ckers, though no- one directly saw him doing it. Nicolas reiterated that, in the 2006 inci- dent, his radio was not working properly. He also said he didn't know it was his friend in the water. He admitted knowing the in- dividual, but denied passing information to him, though he admitted he shouldn't have placed himself in plain view. He was aware his friend was a poacher, but said if he caught him he would "knock his head off ." He also admitted to growing and smoking his own marijuana in order to relieve pain from a past injury. Nicolas also acknowledged knowing other acquaintances who were identifi ed as poachers or drug traffi ckers, but denied sharing information with them. Bond of trust broken e DFO decided to terminate Nicolas' em- ployment because he had broken the bond of trust it needed to have with its offi cers. Because he admitted to using drugs and as- sociating with criminals, he had lost cred- ibility with other offi cers and the police, and harmed the DFO's reputation. On March 29, 2010, Nicolas was formally dismissed for communicating confi dential information to individuals outside the de- partment, possessing and using illicit drugs, associating with drug traffi ckers and fi sher- men being investigated by the DFO, endan- gering other offi cers and using his powers as a fi shery offi cer inappropriately. e adjudicator found Nicolas' explana- tion of the 2006 incident lacked credibility. It was unlikely an experienced fi shery offi cer would accidentally put himself in plain view of a suspect and his claim the radio wasn't working lacked credibility. e adjudicator also found the police re- ports that Nicolas was passing information were credible, as they were produced by reliable police offi cers who would have no reason to lie. In addition, Nicolas acknowl- edged knowing the individuals in question and also admitted to using drugs. ough there was no evidence Nicolas used codes to warn off enders of operations, it was likely he passed some information to his acquain- tances that aff ected investigations, said the adjudicator. e adjudicator also agreed that by his ac- tions, Nicolas compromised his co-workers' safety and used his powers inappropriately. e disclosure of any information about operations exposed offi cers to ambush and gave the off enders an advantage over them. It also eroded the confi dence the police had in the DFO and jeopardized their collabora- tion, said the adjudicator. e adjudicator noted the DFO did noth- ing in the wake of the 2006 incident and, be- cause too much time passed, that incident couldn't be held against Nicolas. However, the 2008 and 2009 police reports prompted investigations — it was reasonable for the DFO to wait for more evidence in 2008 — and were enough to provide just cause for dismissal, said the adjudicator. "I note that (Nicolas) does not seem to take seriously the fact that as a fi shery of- fi cer responsible for law enforcement, he used illegal drugs and sought the company of individuals who poached or were con- nected with the drug world," said the adjudi- cator. See Nicolas c. Administrateur general (minstère des Pêches et des Océans), 2014 CarswellNat 1134 (Can. Pub. Service Lab. Rel. Bd.). DFO offi cer « from DFO on page 1 based on the preference to resist certifi ca- tion are prima facie protected by section 8 and do not constitute interference for the purposes of section 6(1). is reasoning equally applies if views are expressed in what might be characterized a campaign to infl uence employees' decision-making about union representation. In the absence of a deliberate lie, it is not the board's role to police the accuracy or reasonableness of views expressed in accordance with section 8." B.C. employers can express opinions in opposition to union organizing, as long as they do not use coercion or intimidation. In RHM Teleservices International Inc., the employer responded to a union organizing drive by telling its employees it preferred to remain non-union, and by handing out gifts such as plastic sand pails and shovels fi lled with popcorn, with the message that the union did not secure work, bring in busi- ness or provide job security. e employer also distributed water bottles, notepads, and chocolate bars encouraging employees to question the union about the changes that could result from unionization. None of these actions were found to be a breach of the code. However, the rules are more restrictive in some other Canadian jurisdictions. In On- tario, for example, the Ontario Labour Rela- tions Board in its 1988 decision C.J.A., Local 27 v. Povoa Carpentry Trim ruled that it is unlawful interference for an employer to tell employees that both they and the company would be better off if they were represented by one union over another. Employers wishing to respond to union organizing activity should obtain legal ad- vice regarding the steps that can lawfully be taken in the jurisdiction in which the orga- nizing is occurring. For more information see: • Convergys Customer Management Cana- da Inc. v. B.C.G.E.U., 2003 CarswellBC 2202 (B.C. Lab. Rel. Bd.). • RHM Teleservices International Inc., BCL- RB No. B345/2003 (B.C. Lab. Rel. Bd.). • C.J.A., Local 27 v. Povoa Carpentry Trim, 1988 CarswellOnt 1289 (Ont. Lab. Rel. Bd.). Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. « from ASK AN EXPERT on page 2 Expressing opinion on unions

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