A nurse who was discharged from her employment for making disparaging comments about her employer has been reinstated. In North Bay Regional Health Centre v. Canadian Union of Public Employees, Local 139 (February, 2018), the issue for the arbitrator was whether the grievor’s public comments violated the basic duty of loyalty that she owed to her employer.
The comments in question were made at a union-sponsored provincial conference for nurses. The focus of the conference was violence in the workplace. During the conference, without advance notice, the grievor was asked to speak about workplace violence in the nursing profession. Some of the grievor’s remarks were quoted, first, in a union press release and then by a local newspaper in an online article. Although there was some doubt as to exactly what the grievor said, the arbitrator focused on the following phrase, which appeared in the union press release and was attributed to the grievor:
the violence is part of the work we do. Nurses are often blamed directly by the employer for the assaults that are directed at them. Or supervisors tell nurses ‘thanks for taking one for the team’. Often nurses face reprisal for reporting incidents of violence and when we demand increased security measures.
After the Hospital became aware of the statements, which it viewed as untrue and damaging to its reputation, it discharged the grievor, based on alleged breaches of hospital policies and of the duty of loyalty and good-faith.
While arbitral jurisprudence is clear that public criticism that detrimentally affects the employer’s business interests can be a breach of the employee’s duty of loyalty, the analysis turns heavily on the facts of each case. Arbitrators have generally considered the following factors:
- the working level of the employee;
- the nature and content of the expression;
- the visibility of the expression;
- the sensitivity of the issue discussed;
- the truth of the statement made;
- the steps taken by the employee to determine the facts before speaking;
- the efforts made by the employee to raise his or her concerns with the employer;
- the extent to which the employer’s reputation was damaged; and
- the impact on the employer’s ability to conduct business.
In applying these factors to the case at hand, the arbitrator found certain mitigating facts. First, the grievor did not make the remarks with any intention that they would be publicly disseminated. Second, the grievor played no role in issuing the press release, nor in the decision to quote her. Finally, the grievor took steps to have the comments attributed to her removed from the online article. These findings did not, however, absolve the grievor of all blame. In the arbitrator’s view, it was not unforeseeable that the grievor’s remarks could become public, such that the grievor had to bear some responsibility.
The arbitrator assessed the truth of the statements, and whether there was resulting harm to the Hospital. He found that while the statements may have been true of the hospital sector generally, they were unproven and therefore untrue with respect to the Hospital itself. The arbitrator also accepted that one could infer harm from the inflammatory nature of the grievor’s comments. However, based on the modest public exposure, the arbitrator found that the harm was limited and that the Hospital was not detrimentally impacted in its ability to conduct its business. The arbitrator concluded that although discipline was warranted, discharge was too severe. He determined that a one week suspension was appropriate in the circumstances.
As to remedy, the Hospital argued that the employment relationship was no longer viable, such that damages ought to be awarded in lieu of reinstatement. The arbitrator disagreed, noting that where discharge is found to be excessive, the presumptive remedy is reinstatement. He concluded that the grievor’s conduct had not irreparably damaged the employment relationship, and that there was no evidence that the grievor was incapable or unwilling to perform her job. The arbitrator therefore reinstated the grievor with full compensation, subject to a one week suspension
In our view
Although this decision turned heavily on the fact that the Hospital was not significantly harmed by the grievor’s statements, harsher penalties may be warranted where an employee’s public remarks have a demonstrable adverse impact on the employer’s ability to conduct its business. In light of this decision, organizations may consider reviewing or implementing media policies or employee codes of conduct that clearly set out their expectations with respect to public communications.