Canada: Right To Union Representation During An Investigation Process

Previously printed in the LexisNexis Labour Notes Newsletter.

In Vancouver (City) Fire and Rescue Services v. Vancouver Firefighters' Union, [2022] B.C.C.A.A.A. No. 85 (Saunders), Arbitrator Ken Saunders considered an employee's right to union representation during an investigation process, including the right to remain silent pending the provision of representation.

The case does not change the law on union representation in meetings with employees. It is, however, a useful and comprehensive review of the principles which apply, including the fact that such rights are dictated by the language bargained in the collective agreement.

Background

The union filed a policy grievance over the scope of representation rights for employees who are called to investigation meetings pursuant to the employer's respectful workplace policy.

The collective agreement language in question provided as follows:

13.7 Discipline, Suspension and Discharge

Where the Employer calls a meeting with an employee for the express purpose of investigating their conduct or issuing them written discipline, suspension or dismissal, the employee may elect to have a Union representative(s) present. The Employer agrees to contact the Union and provide a minimum of three (3) hours' notice so the Union can contact the employee and provide the Union representative(s) if the employee so wishes. Where the employee elects not to have a Union representative(s) present or a Union representative(s) is not available for the meeting within the three (3) hour notice period, the absence of a Union representative(s) shall not affect the Employer's right to discipline, suspend or dismiss. Nothing in this provision shall prevent the Employer from taking immediate action to remove an employee from the workplace to address serious workplace concerns.

Rulings of the arbitrator

The arbitrator issued the following rulings in response to the issues raised in the grievance:

(a) Employees are entitled to union representation at discipline meetings but not fact-finding meetings. The right depends on the employer's intended purpose for the meeting. The collective agreement did not create a right to representation during non-disciplinary meetings between the employer and its employees.

The arbitrator reasoned that the collective agreement right to union representation was contingent on whether the meeting was for the express purpose of investigating that employee's conduct for disciplinary purposes or to issue discipline. The union is entitled to notice of the meeting only once that express purpose is within the employer's reasonable contemplation. The employer's notice to the union then triggers an employee's right to seek union representation.

The employee is not entitled to union representation at a meeting with the employer that is intended solely as a fact-finding meeting. In the course of the fact-finding meeting, if the employer becomes aware that the meeting has taken on a disciplinary aspect, the employer must notify the union so that the employee has the opportunity to seek union representation.

The right to representation arises when discipline is within the employer's "reasonable" contemplation, which is an objective test.

(b) The union representative's role in disciplinary meetings is to act as an observer, advocate, spokesperson and advisor.

(c) The employer was obligated to include in an investigation meeting notice a general statement of the events under investigation, including when and where the alleged events happened and who was involved, but was not obligated to produce the written complaint in advance of the meeting.

(d) An employee at a non-disciplinary meeting who believes that a disclosure might expose him or her to discipline has a qualified right to remain silent until a union representative can attend. This is so long as the delay does not expose the employer to harm.

The employee's belief must be reasonably held. Absent the presence of overriding harm to the employer's legitimate interests, an employee's silence during that interim or temporary period, standing alone, will not constitute just and reasonable cause for discipline. For example – and as illustrated by the facts and reasoning in British Columbia Ferry and Marine Workers' Union v. British Columbia Ferry Services Inc., [2008] B.C.J. No. 2066 (S.C.) – an employee's duty of fidelity may assume precedence in circumstances where the employee knowingly allows his or her silence during that interim or temporary period to harm an overriding legitimate business or operational interest of the employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.