Freedom of speech in the workplace should not be misinterpreted to mean freedom from consequences.
Even though freedom of expression is protected by section 2(b) of the Canadian Charter of Rights and Freedoms (Charter), the protection is not offered blindly. The charter guarantees freedom of expression by protecting individuals from criminal prosecution as a result of what they say. The protection offered by the charter is premised upon fundamental principles and values that contribute to individuals’ search for truth, attainment of truth, partaking in society, participation in political decision-making, and their self-fulfillment through expression.
In the workplace, employees do not have a constitutional right to freedom of expression. This is because the charter protects an employee from an employer who is subject to the charter, which is the government. Therefore, the Charter protection of employees’ freedom of expression is confined to government action. It protects employees from criminal prosecution but does not mean that employees cannot be fired, suspended, or suffer any other non-prosecutorial consequence.
In most cases, public sector employers have the right and the freedom to control expression in the workplace as long as they do not use this obligation to discriminate against an employee on a protected ground such as religion, political affiliation, and so on.
Employers obligated to provide “safe working environment”
Additionally, employers are legally bound and obligated to provide their employees with a safe working environment. This statutory obligation requires employers to curb and control any form of expression that amounts to discrimination, violence, harassment, or bullying. The fact that the employer has sole discretion on the definition of expressions that are discriminative, violent, or harassing implies that employees’ freedom of speech in the workplace is not protected.
Controlling expression where appropriate
To control, limit, or restrict employees’ expression at work, employers can use disciplinary action, corporate policies, or the organization’s rules and guidelines. Also, employers can invoke common laws such as the loyalty owed by an employee to the organization or directly to the employer. Most employers also implement policies that guide employees conduct in the workplace to provide a safe and respectful working environment. These policies restrict employees from discussing or expressing certain topics such as discriminatory remarks, divisive political discourse, or any other statements that can negatively affect the productivity, culture, values, or peace in the workplace.
Legal case example
The case Canada Post Corp. v C.U.P.W., 26 L.A.C. (3d) 58 (Can. Arb.) noted that when employees are at work, they are not entitled to express themselves in a manner that is intended to disrupt production or bring disrepute their employer. This precedent reinforces the rights of employers to crack down any expression, speech, or topics of discussion that can poison the work environment for employees. Most importantly, the precedent anchors the employers’ rights in the law.
Employees must understand that freedom of expression does not mean freedom or protection from consequences in the workplace. Even though freedom of expression must be cherished and protected, employers have to ensure that all employees are protected from disrespectful, discriminative, or hurtful expressions in the workplace. A hostile work environment will disadvantage both the employer and the employee.
Do you need help balancing employee’s “freedom of speech” with a “disruptive or negative” work environment? Contact the experts at Pivotal HR Solutions: