The right to remain silent in disciplinary investigations: does it really exist?

Union stewards who are asked to represent members in investigations should be familiar with a few principles and a couple of cases that may help them navigate this tricky area of union representation. While the cases referred to are mainly from the BC jurisdiction the principles are applicable to Canadian labour law.

In all instances stewards, should first look to their collective agreement to see whether there are provisions that govern how an employer is to conduct an investigation. Generally collective agreements will require that an employee can be represented by a union steward, but are silent on what the rights of employees and the obligation of employers are in an investigation. But once in a while, as I found out to my delight recently, the parties will have turned their mind to this topic and may actually set out in detail the rights and obligations that apply to an employer investigation. *

What are the rights and obligations of unionized employees when the employer is conducting an investigation about that employee?

The seminal case in British Columbia is the 1990 Labour Relations Board decision
Tober Inudstries and UFCW Local 1518, No. C54/90.

This case stands for the proposition that, except in extreme circumstances, employees cannot be disciplined for failing to offer an explanation or refusing to answer questions in an investigation which may result in their discipline. This is an exception to the general rule that an employee who refuses to follow an employer's direction can be disciplined for insubordination.

The underlying principle is that an employee has no obligation to assist an employer to build a case against her. For a discussion of this see Overwaitea Food Group and UFCW Local 1518 42 L.A.C. (4th) 19 (Taylor).

The Board, and arbitrators, have described such investigative meetings as "an opportunity" for an employee to provide an explanation.

While the employee who fails to avail himself of the opportunity cannot be disciplined, he does run the risk that, if an arbitrator later finds that the employer has established just cause for discipline, his silence may well be considered an aggravating factor when determining the appropriateness of the discipline imposed.

Stewards then do have a duty to advise members that while they do not have to answer the employer's questions, they do so with the possibility that their silence may be held against them, if it is proven that they should have been disciplined. (It's alway's useful to re-read Wm. Scott when dealing with potential discipline case).

The question that remains then is how do you determine whether the situation you are dealing with amounts to "extreme circumstances" that turn the opportunity to explain into an obligation by the employee to provide an explanation? It's important to try and figure this out because whether the opportunity has turned into the obligation, failure or refusal to explain may amount to an independent ground discipline.

An example of the more obvious set of circumstances is where an employee is "caught in the act" or "caught red-handed" in unauthorized possession of the employer's property. In such circumstances, where the employer is investigating a theft, the employee has an obligation to offer an explanation. An employee who remains silent in such a circumstance may be disciplined for failing to cooperate in the investigation, and in the absence of extenuating circumstances, an arbitrator is likely to uphold the grievance.

The more difficult area is where the facts are not so simple. In such circumstances, assessing when the obligation has arisen requires a balancing of the employee's interest in remaining silent (and thus protecting his own privacy) and the employer's interest to protect its legitimate business interests. This principle has been expressed as the obligation arises when the employee's silence would undermine the employer's legitimate business interest.

Stewards would be well advised to read the decision of Arbitrator Foley in BC Ferries and BC Ferry and Marine Worker's Union 159 L.A.C. (4th) 165 to see an application of this principle.

In that case the two grievors were officers of the ferry Queen of the North at the time of its highly publicized sinking in which two passengers died. BC Ferries launched an internal investigation and made a public commitment that it would make a full discloure of its findings.

The grievors had participated fully in two other investigations into the mishap. One by the Canadian Transportation Commission and the other by the employer's insurer. In both investigations the grievors were assured confidentiality and the protection of the Canada Evidence Act against self-incrimination.

When it came to the internal BC Ferries investigation, the grievors sought similar assurances on the advice of their legal counsel. The employer refused. The primary reason apparently was that the employer had a public duty to, not only find out what had happened, but also to make a full disclosure. The employer suspended the employees without pay pending their co-operation with the investigation.

The union grieved and the grievance was dismissed. The arbitrator reasoned that the employer's legitimate business interests could not be achieved without the cooperation of the employees. The employer needed to know what had happened at the critical period and had a right to tell the public. In these circumstances there was an obligation on the employees to co-operate with the investigation and their refusal to do so was a ground for discipline.

Generally, extreme circumstances will not normally arise and it is important to get the employer to establish that in a particular investigation the employee has an obligation to answer questions.

Even in those circumstances, however, employees have the right to know what the allegations are against them, to be asked clear and relevant questions and to be given a reasonable opportunity to answer the questions. This means that employees are entitled to caucus with their union representative before offering an explanation.

The most important point for stewards and union members facing investigation into workplace misconduct to remember is to immediately contact their union staff representative or local executive officer for advice.

*The collective agreement between Whitehorse General Hospital and the Professional Institute of the Public Service of Canada contains a provision describing the rights and obligations in an investigation, including the obligation to provide disclosure of all documents and information relating to the allegations.