Employees’ “Right to Silence” is Not Absolute
In British Columbia Ferry and Marine Workers’ Union v. British Columbia Ferry Services Inc. (November 3, 2008), the B.C. Supreme Court upheld an arbitrator’s finding that, in exceptional circumstances, an employer’s interest in ascertaining and disclosing the cause of an incident can outweigh an employee’s interest in remaining silent.
On March 21, 2006, a ferry traveling from Prince Rupert to Port Hardy, B.C sank. While 50 passengers and 49 crew members were evacuated, two passengers were never found and are presumed dead.
B.C. Ferry Services launched an internal investigation of the incident. However, on their lawyers’ advice, the two employees in charge of navigation on the ferry refused to answer the employer’s questions. The employees cited their right to remain silent in the face of potential criminal charges arising from the RCMP’s ongoing criminal investigation. The employer suspended them without pay until they answered the employer’s questions, claiming that their insistence on remaining silent amounted to insubordination. The union grieved the suspensions.
The arbitrator dismissed the grievance and upheld the suspensions. In so finding, he relied on the decision of the British Columbia Industrial Relations Council in UFCW, Local 1518 v. Tober Enterprises. In Tober, the IRC found that the right to silence is not an absolute right. While refusing to explain misconduct generally will not constitute just cause for discipline, there are two exceptions to this rule:
1. if an employee either deliberately attempts to deceive the employer with a false or misleading explanation, or
2. knowingly allows his or her silence to damage the legitimate business interests of the employer.
Such conduct may form the basis for the imposition of discipline.
In this case, the grievors’ refusal to answer questions impaired the employer’s interest in completing its investigation of the accident and issuing a report to the public. The arbitrator therefore found that the employer had just cause to impose the suspensions.
The union applied to the Labour Board for a review of the arbitrator’s decision. The Board upheld the arbitrator’s award, stating that it was reasonable for him to have concluded that knowingly allowing one’s silence to damage the employer’s business interests constitutes an exception to the general rule in Tober. The Board then summarily dismissed the union’s application for reconsideration of its decision.
The union sought judicial review of the original Board decision at the British Columbia Supreme Court. The union claimed that the Board had erred in applying the law, as set out in Tober, regarding exceptions to an employee’s right to remain silent.
The Court dismissed the union’s application. The Court stated that the union’s arguments were actually a challenge to the reasoning in Tober, and not to the arbitrator’s reasoning. Since the union had not argued that Tober should be modified before the Board, the Court refused to fault the Board for failing to address an argument that had not been made before it.
In upholding the Board’s decision and the arbitrator’s award, the B.C. Supreme Court confirmed that there are exceptions to an employee’s general right to silence. An employee’s refusal to answer questions may form grounds for discipline, as long as the employer can demonstrate that the employee knowingly allowed his or her refusal to speak to damage a legitimate interest of the employer.