A recent Ontario Court (General Division) case and a recent labour arbitration case have reaffirmed some basic legal principles about freedom of speech within the union, in the workplace and in public.
Speaking Freely, but Truthfully, and not Maliciously
A recent Ontario Court (General Division) case and a recent labour arbitration case have reaffirmed some basic legal principles about freedom of speech within the union, in the workplace and in public.
Freedom of Speech Within the Local Union About Fellow Union Members
In Haas v Davis (1998) 37 O.R. (3d) 529, the plaintiff (person suing) and the defendants (people being sued) were all motion picture projectionists and members of the same union local. The defendants falsely accused the plaintiff of sabotaging workplace equipment. Those false accusations were set out in an affidavit read at a local union meeting. As a result, the employer removed the plaintiff from his chief projectionist job and denied him compassionate leave (which he needed to look after his ill parents.) A union trial board dealt with the accusations and found the plaintiff not guilty. He was eventually reinstated as chief projectionist after being absent for six months. The plaintiff sued for damages for being libelled. He was successful and was awarded $20,000 for loss of reputation and mental distress and six months lost wages.
The trial judge was asked to consider a defence from the defendants that is commonly raised, namely “qualified privilege”. “A privileged occasion is … an occasion where the person who makes a communication has an interest or a duty to make it…. and the person to whom it is made has a corresponding interest or duty to receive it.” A privileged occasion would be a union meeting and the privilege would cover the discussion of union business. Union activists have a duty to speak to members about issues, and union members have an interest in hearing the information.
When a statement is made on an occasion of qualified privilege, a person can make statements which are both negative and untrue and still escape any legal liability. “The privilege is not absolute, however, and may be defeated in two ways. First, the privilege is lost if the dominant motive for publishing is actual or express malice.” “Malice is commonly understood as ill will toward someone”. You can make statements about someone you hate but your main reason for speaking must not be to get back to him or her. Your main reason for speaking has to be a legitimate reason, like protecting the local union’s interests. The second way to lose the privilege is to be deliberately lying or not care if you are telling a lie. Your factual statements don’t have to be true but you have to believe them to be true and not be reckless about that.
To put it another way, a defendant is not liable merely because he is “…irrational, impulsive, stupid, hasty or obstinate”, but he is liable when primarily motivated by ill will, or when he is lying, or when he really doesn’t care about the falsehood of his statement.
In this case of the projectionist, the libellous statements were found to have been made on an occasion of qualified privilege, i.e., the local union meeting. It was an occasion where everyone had an interest or duty to hear and consider allegations of inappropriate conduct by a unionist. In that setting, false statements could be made provided they were thought to be true and they were not being made maliciously. In this case, that test wasn’t met. The statements were found to be both malicious and knowingly false.
How does the Hamiltonscab libel case fit into this? The jury decided there was ill will towards Kelly and/or that the local didn’t care if it had accurately identified Kelly as a scab. The evidence of that may have been thin, but juries are entitled to weigh evidence.
These court rulings can be summarized positively by saying that unionists can speak freely to each other concerning union issues and that certainly includes speaking negatively about others. However, when speaking negatively about fellow members, it’s necessary to be both 1) honest, not reckless, with the facts, and 2) not primarily motivated by personal malice. As long as those conditions are met, the speaker runs little risk of legal liability, even if it turns out later he was mistaken.
Freedom of Speech about Management in the Workplace
In Municipalityof Metropolitan Torontoand CUPE Local 79 (1998) 68 LAC (4th) 224, a local union steward was given a five day suspension for distributing a leaflet about a contentious workplace issue, namely the disciplining of a union activist. In the leaflet, the steward said the activist had received more than 12 suspensions and all of them had been found by an arbitrator to be without cause. The number of suspensions was wrong but the steward had honestly believed it to be true. The description of the outcome at arbitration was also wrong, but the steward had deliberately lied about this issue in order to mobilize the membership. The arbitrator found that the five day suspension was justified for the publication of the knowingly untrue statements.
The core of the arbitrator’s reasoning was as follows:
Arbitrators have held that inherent in the role of UnionSteward is the right to represent employees and the union in the workplace, and that this representation often requires that the Steward forcefully challenge the decisions of management.
Arbitrators have generally accorded Stewards a wide range of latitude in order that they may carry out their duties free from fear of discipline or sanction. Given the adversarial nature of labour relations in this province, it is sometimes inherent in the responsibilities of Stewards to criticize the actions of management, in an effort to inform the membership or to improve labour management relations.
Arbitrators have held that Union Stewards are the front line advocates on behalf of bargaining unit members, and that they must be able to fully discharge their responsibilities, and "they must not be muzzled into quiet complacency by the threat of discipline at the hands of their employer".
Such protection on the activities and statements of Stewards is not, however, unlimited. The concomitant obligations on Stewards is that they not use this broad right to make statements or act in a manner which is knowingly false, or which is a reckless disregard for the truth, or which is malicious in nature.
The arbitrator also cautioned that the distribution of leaflets should not be done in a way that disrupts work.
Once again, union activists are free to speak negatively in the workplace about management but they should do so honestly and without malice and for the purpose of dealing with workplace issues.
Communications with the Public
In Municipalityof Metropolitan Torontoand CUPE Local 79, the grievor also participated in a public media campaign against the employer wherein he made a series of very negative statements about the management of his workplace. None of those statements were knowingly false. The arbitrator found that this was legitimate union activity.
Arbitrators and Labour Boards have also held that Union Stewards are able to raise concerns about management in a public forum or through the media.
Arbitrators have held that this is particularly relevant in the public sector where public pressure is a means by which to educate, inform and persuade decision-makers, politicians, and the public on specific issues, particularly where the concerns of the union are closely aligned with the public interest.
In such cases, arbitrators have applied the same criteria, that the statements must not be malicious, or knowingly or recklessly false.
The courts have a tendency to be somewhat more restrictive than arbitrators when it comes to public statements. The courts apply the concept of "fair comment". When persons with a legitimate concern about the issue, like union spokespeople, speak on a matter of public interest, like union-management issues in OPS (Ontario Public Service) and BPS (Broader Public Service) workplaces, then they have the right to make “fair comment”. This means they can certainly make comments that are very strongly and negatively worded, but they should:
1) set out the main facts they are relying on;
2) make sure those facts are true and can be proven to a court to be true (not just thought to be true); and
3) make sure the predominant purpose is not malice.
The courts will require public comments to be based on true facts, and will not likely accept the argument that the person thought the facts to be true. The courts require people to check their facts more carefully when they make public comments than when they make comments on an occasion of “qualified privilege”.
Speaking Freely, but Truthfully, and not Maliciously
Examples:
As said at a Progressive Conservative Convention: Mike Harris personally fired employees for union activity [which is false, but was thought by the foolish isolated Red Tory who said it to be true]. He is an anti-union thug.» Protected by the defence of “qualified privilege”.
As said in public: Mike Harris personally fired employees for union activity [which is false, but was thought by the activist who said it to be true]. He is an anti-union thug. » Libellous.
Mike Harris has passed laws that cut back union rights. He is an anti-union thug. » Fair comment.
When speaking publicly, it is more important to make quite sure the facts you are relying on are correct.
In the Ontario Public Service, there is an added concern. Public servants have obligations to honour their oaths of secrecy, to maintain confidentiality of information and avoid conflicts of interest (including public criticism of the government related to their job duties). However, they also have a full and unfettered right to engage in union activity. The Union’s position is always that the right to engage in union activity includes the right to be publicly critical of management. Such public criticism is preferably done as a union spokesperson, and becomes more of an issue if done simply as an individual public servant.
In summary, when speaking in public, it is best to:
a) make sure your facts are accurate;
b) not violate the confidentiality of sensitive or personal information;
c) ensure you are speaking as a union spokesperson about workplace issues.
Ontario Public Service Employees Union, 1998 used with permission