Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | March 30, 2016 Answer: Broadly speaking, the regulation of employer communications during an organ- izing drive involves the balancing of employ- er and employee rights. An employer's right to inform employees of its views, often re- ferred to as employer free speech, is balanced against its employees' statutory rights to join a union, to participate in its lawful activities and to choose a bargaining representative freely and without employer interference. While employers are not prohibited from expressing their views, and are often given the express right to do so subject to certain conditions, their communications with em- ployees cannot encroach on these employee rights. Unfair labour practice provisions in every province and in the federal jurisdic- tion provide a remedy where it is alleged that employer communications have gone too far. ere are many similarities in the legislation and consistent themes running through the case law. However, the statutes do diff er from jurisdiction to jurisdiction. e terms of the relevant legislation and the jurisprudence interpreting that legislation should be con- sidered in assessing the appropriateness of a communication in any particular case. Under the Alberta Labour Relations Code, employer communications are typically chal- lenged under provisions prohibiting an em- ployer from interfering with the formation of or representation of employees by a union or, less often, contributing support to a trade union. (s. 148(1)). ese prohibitions, as ap- plied to employer free speech, are moderated by s. 148(2). is provision allows an employ- er to "express (its) views so long as the em- ployer does not use coercion, intimidation, threats, promises or undue infl uence." Addressing the scope of this provision in I.B.E.W., Local 424 v. Stuve Electric Ltd., the Alberta Board said: "Employers are not required to sit gagged and bound during an organizing campaign. Employees are not like Burns' 'wee timorous beasties' scared off by the slightest expression of employer opposition. However, an em- ployer is in a position of power, particularly in respect to unorganized employees. Free speech must be tempered, as it is in section (148(2)(c)), by a recognition that certain con- duct emanating from the employer can co- erce or unduly infl uence employees impair- ing their right to freely select a union. Other labour boards have echoed these sentiments, ruling that reasonable employees have the ability to make inquiries and to as- sess employers' views, knowing that employ- ers are unlikely to welcome unionization. e B.C. Labour Relations Code provides perhaps the greatest scope for employers to express their disapproval. e B.C. Board has interpreted 2002 amendments to the code as permitting an employer to eff ectively inter- fere with union organization and to carry on a campaign to infl uence employees' decision- making about union representation provided that it does not resort to intimidation or coer- cion. e board has ruled that, absent coer- cion, intimidation or deliberate lies, employer communications to employees need not be either informed or reasonable: Simpe 'Q' Care Inc.; RMH Teleservices International Inc. v. B.C.G.E.U.. e line between an acceptable commu- nication and a coercive or intimidating one resulting in an unfair labour practice can be a fi ne one in the sensitive context of an organiz- ing drive. As the consequences of misstep can be severe, it is vital to ensure that management is aware that caution is required when com- municating with aff ected employees. Com- munications that threaten negative outcomes such as job loss, plant closure or reduction in salaries, benefi ts or hours of work if a union is certifi ed or, alternatively, promise improve- ments if the union is defeated are problematic and should be avoided. It is also important to recognize that the legitimacy of an employer communication is not judged solely by reference to its content. Factors such as the parties' relationship and their prior history; the manner in which the employer's views are expressed; the place, form and timing of the communication; the conduct and demeanour of the speakers; and similar circumstances are all relevant in deter- mining the eff ect of the employer's communi- cation on the reasonable employee. Captive- audience meetings tend to be regarded as coercive by their very nature. Relatively neu- tral expressions of opinion may be tainted by conduct that casts that neutrality into doubt. Even a refusal to communicate can be intimi- dating if the silence can be interpreted as an implicit threat. Attention must be paid to the circumstances of the communication as well as its content. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Accommodating creed Question: How does an employer determine whether an employee requesting accommodation for a belief system or creed is legitimate, particularly if the employer hasn't heard of such beliefs before? Do any such requests deserve accommodation? Answer: e scope for an employer to de- mand proof of an employee's need for ac- commodation based on religion or creed is very narrow. Current case law suggests that where an employee seeks accommoda- tion for a sincerely held belief, the employer must limit its inquiry to how and if it can ac- commodate the employee's request without undue hardship. It has no right to establish the legitimacy of the employee's belief based on recognized doctrinal principles or to re- ject a request for accommodation without some reasonable basis to believe that the employee's belief is not sincere. If the employer fails to consider a request for accommodation because it doubts the sincerity of the employee's belief, it may be called upon to justify that position before an arbitrator or human rights tribunal. If it fails to consider a request for accommodation simply because it does not recognize novel beliefs as legitimate or deserving of accom- modation, it will likely have no justifi cation. e 2004 decision of the Supreme Court of Canada in Syndicat Northcrest c. Amselem set the standard for assessing discrimina- tion claims based on religion and creed. In that case, a majority of the court held that a claimant need only establish a sincere be- lief or practice having a nexus with religion when alleging infringement of her charter right to freedom of religion. ere is no ob- ligation to prove that the belief is an objec- tive requirement of a recognized religion or creed. e majority reasoned that practices can and do diff er from individual to individ- ual. It is sincerely held beliefs that are deserv- ing of protection, whether or not they refl ect the practices of other members of the same religion or creed. e subjectivity of this test clearly creates diffi culties for employers. It does not sup- port an inquiry into the mandatory nature of a religious practice or its consistency with any identifi able faith or religion. If an em- ployee sincerely believes that the practice Walking the line between simple communication and interference Question: When a union organizing drive is taking place in a non-unionized workplace, how far can an employer legally go to inform its employees of its position against the drive? THE QUESTION on page 7 »

• Cover