Employees’ Use of Employer’s Email System to Send Union-Related Messages in a Collective Bargaining Context
In its decision in Association professionnelle des ingénieurs du Gouvernement du Québec v. Procureure générale du Québec1 rendered on July 4, 2019, the Quebec Court of Appeal overturned a judgment of the Superior Court2 granting a motion for judicial review of a decision of the Labour Relations Board (Commission des relations du travail) (the “Board”) now known as the Administrative Labour Tribunal3.
The appellant, the association of professional engineers in the employ of the Quebec government (Association professionnelle des ingénieurs du gouvernement du Québec), had submitted to the Board a complaint of hindrance of union activities by the employer, and an application for a provisional order. The appellant alleged that the hindrance consisted of the government’s prohibition on publishing a union-related message that was appended to the electronic signature on emails sent by its members in connection with their employment.
The Board concluded that the message added by the appellant’s members to their e-signature constituted the exercise of their right to freedom of expression in a collective bargaining context. In the Board’s view, the respondent’s right of ownership of the email system and the directive issued by it to justify the prohibition did not justify the “unreasonable” limit on the right to freedom of expression of the appellant’s members, which it considered to have been “exercised in a reasonable manner”4.
The Superior Court judge sitting in judicial review of the Board’s decision applied the reasonableness standard of review and concluded that the decision was not among the possible acceptable outcomes in light of the facts and the law. In her view [TRANSLATION] “a reasonable weighing of the respondent’s infringement – which all things considered was quite minimal – of the freedom of expression of the appellant’s members and the public interest, should have led the Board to conclude that the prohibition was reasonable and to dismiss the appellant’s complaint based on section 12 of the Labour Code”5. She therefore quashed the Board’s decision and dismissed the appellant’s complaint.
On appeal, there were two key questions before the Court of Appeal, i.e. the nature of the standard of review and how it was applied, and the competition between the employees’ right to freedom of expression and the employer’s right of ownership in a collective bargaining context.
On the nature of the standard of review and how it was applied, the Court concluded that the reasonableness standard applied to the Board’s decision but, contrary to the Superior Court, it found that the both Board’s decision and its justification therefore had the requisite qualities of reasonableness. It stressed however that the Board’s decision was made in a very specific context and that its ramifications were limited to the case before it. In this regard the Court emphasized that [TRANSLATION] “the Board did not decide that in every respect and in all circumstances the electronic mail system of an employer can be used by the employees of an enterprise, public or private, for disseminating the union’s point of view on a potential labour dispute”6.
Regarding the balancing of the members’ right to freedom of expression and the respondent’s right of ownership of the email system, the Court of Appeal found that the Board’s reasoning was well-supported and that its approach was rational. In the Court’s view the Board duly analyzed the two competing rights while bearing in mind the nature of contemporary modes of electronic communication. The Board took into account the attitude of the parties in the context of their negotiation for the renewal of the collective agreement, the content of the message at issue and its mode of transmission, as well as the repercussions of the message on the employer. The content of the message was found to be accurate and respectful, its tenor left no doubt as to its connection with the union, and the respondent had adduced no evidence to the effect that the employer had been prejudiced. The Court of Appeal concluded that the Superior Court should not have authorized the judicial review, and it allowed the appeal.
This decision highlights the delicate nature of the exercise of weighing the competing rights of freedom of expression of employees and the employer’s property rights in a collective bargaining context. To the various means of expressing a union-related message, such as wearing a button or putting up stickers or posters, we now have the use of the employer’s email system. It is important to bear in mind however that, as the Court of Appeal points out, its decision does not legitimize employees’ use of the employer’s email system in any work-related situation or collective-bargaining context. As each such situation is sui generis, employers must pay close attention to the content of the union’s message, the manner in which it was sent, and the potentially harmful consequences for the employer that may ensue. This decision will be of great importance in the context of all upcoming negotiations on working conditions.
1 Association professionnelle des ingénieurs du Gouvernement du Québec v. Procureure générale du Québec, 2019 QCCA 1171
2 Québec (Procureure générale) v. Commission des relations du travail, division des relations du travail, 2016 QCCS 5095.
3 Pursuant to the adoption of the Act to establish the Administrative Labour Tribunal, the Board has been replaced by the “Administrative Labour Tribunal”.
4 Association professionnelle des ingénieurs du gouvernement du Québec v. Québec, 2015 QCCRT 460, para. 105.
5 Op. cit., note 2, para. 36.
6 Op. cit., note 1, para. 40.