Case nicely illustrates how duty of fidelity constrains negative expression in the workplace

On June 13th, Arbitrator Herlich issued an award in which he affirmed discipline meted to an employee who made various negative comments in the workplace but reduced the penalty because the discipline rested in part on an internal e-mail communication that was not culpable.

The employee worked at a convention centre. He was disciplined for expressing negative views on three occasions. Two occasions led to customer complaints. The third was in the workplace where clients were in attendance. The discipline also rested on an e-mail the employee sent to a senior executive that was critical of the employer (though not of any specific individuals). The employer felt the employee did not follow the proper procedure for raising a complaint.

Arbitrator Herlich said the following about the three occasions of negative expression in the workplace:

The grievor obviously has an extensive workplace and labour relations agenda. He is entitled to his views and he is entitled to engage in legitimate trade union activities, including, should he so choose, seeking trade union office and engaging in the politicking that may attend those efforts. That freedom, however, is not absolute and does not provide him with a license to freely express his views at work to, or within the earshot of, the employer’s customers or guests. The grievor clearly did not and, I fear, still does not understand this.

He felt that sending e-mail was different and, in the circumstances, not culpable. Based on this and a consideration of other factors, Arbitrator Herlich reduced the employer’s five day suspension to a three day suspension.

United Steelworkers and The Crown in Right of Ontario (Ottawa Convention Centre) (13 June 2012, Herlich).

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