Can an employer ban discussion of certain topics in the workplace that have caused arguments between employees under threat of discipline?
Question: Can an employer ban discussion of certain topics in the workplace that have caused arguments between employees under threat of discipline?
Answer: Freedom of expression is a fundamental freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression. However, while “free speech” is a protected right, individuals often mistakenly assert that freedom as an absolute right.
Employees do not have a constitutional right to freedom of expression at work in most circumstances. The first issue always is whether the employee is protected by the Charter, and such a determination requires a finding that a particular employer is subject to the Charter (i.e., is the employer a government or quasi-government employer versus private sector). The Charter’s right to free speech is confined to government action, and most public sector employers have free reign (subject to its obligation to not discriminate on a protected ground such as political affiliation) to control expression in the workplace.
In most circumstances, regardless of whether the Charter applies, employers are generally free to restrict employee speech to a certain degree, at least while they are at work. The context in which employers most often place limits on expression is an employer’s legal and statutory obligation to provide a safe work environment free from discrimination, harassment, violence and bullying.
As such, limits to expression by employees may take many different forms. They can include disciplinary action taken against certain employees, corporate policies and rules or even common law rules such as the duty of loyalty owed by an employee to an employer. Employers commonly implement policies that provide for a respectful workplace and particularize appropriate workplace conduct. Such policies implicitly have the effect of restricting certain topics of discussion or expression such as discriminatory or hurtful remarks, threatening
statements and even political discourse if it escalates into argument having an effect on the broader workplace and culture.
For example, hate speech or topics of discussion that could create a poisoned work environment for employees are generally prohibited. One of the leading Canadian cases in this area notes that employees are not entitled, while at work, to express themselves either in verbal or written form in a manner that is calculated to disrupt production or bring the employer into disrepute with its customers: Canada Post Corp. v C.U.P.W.
Overall, freedom of expression cannot be equated to freedom from workplace consequences. Certain comments or discussion can create a negative or hostile work environment that can interfere with an employee’s job performance or work environment.
As much as freedom of speech is an important value to advocate, employers must also ensure that all speech is carried out respectfully and free of discrimination.
For more information see:
• Canada Post Corp. v C.U.P.W., 26 L.A.C. (3d) 58 (Can. Arb.).
Tim Mitchell practises management-side labour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or [email protected]