Work-Related Emails and Union Messaging: Are They Compatible?

The Quebec Court of Appeal recently rendered an important decision in the area of labour relations. In this matter, a public-sector union had initially filed a complaint of hindrance of union activities with Quebec’s labour relations board (the Commission des relations du travail), now known as the Administrative Labour Tribunal (the “Board”). It alleged that the hindrance consisted of the employer’s prohibition on publishing a union-related message that was appended to the electronic signature on work-related emails sent by the employees.

At first instance, the Board decided in favour of the union, finding that the message added by its members to their e-signature constituted an exercise of their right to freedom of expression in a labour relations context. Subsequently, the Superior Court overturned the Board’s decision and dismissed the union’s complaint.

On appeal, the Court of Appeal considered the balance to be struck between the union members’ right to freedom of expression and the employer’s right of ownership in the work tools it makes available to its unionized employees. In this regard it found that the Board’s conclusion was justified, as it was well reasoned and followed a rational approach. According to the Court, the Board carefully weighed the two competing rights while taking into account contemporary use of electronic modes of communication. It also took account of the context in which the renewal of the collective agreement was being negotiated, the content of the message, the way it was sent, and the repercussions of the repeated sending of the message on the employer’s activities. The content of the message was found to be accurate and respectful, left no doubt as to its connection with the union, and the employer had not shown that it had been prejudiced in any way. The Court thus allowed the appeal and restored the decision initially rendered by the Board.

The takeaway

This decision highlights the delicate nature of the exercise of weighing, in a collective bargaining context, the competing rights of employees’ freedom of expression and the employer’s property rights. 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 and every work-related situation or labour dispute. As each such situation will be assessed on its own facts, 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 if the union employs this kind of tactic.

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