Written by David Doorey, Full Professor of Labour Law, York University
David Smith called two of his colleagues at a company called Raven Clinical Research to complain to them about not being paid on time and asked them if they too had been paid late. Another employee heard about this discussion and informed the employer that Smith had been telling coworkers that he is not being paid on time. In response, the employer fired Smith for “HR related discussions with other personnel.”
Althea Burton raised concerns with management in her law clerk job about the pay practices applicable to clerks like her. She was told by the manager to ask around about pay levels of other clerks. Burton then talked to her colleagues about their pay. The employer found out about these discussions and fired Burton for violating a clause in her contract prohibiting employees from discussing their pay.
Does the termination of Smith or Burton violate Canadian labour laws?
This is a question that I have considered for a very long time. Let me set out the issues.
The Smith case was decided last week in the United States pursuant to Section 7 of the National Labor Relations Act, which provides as follows:
… employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection.
Applying this language, an administrative law judge ruled that Smith’s termination was illegal. For activity to be protected “concerted activities”, it must involve either workers acting in concert (together) or actions of a single worker who is expressing views or acting on behalf of a group of workers with their authority. If any part of the employer’s motivation for punishing the worker is related to concerted activities it is unlawful.
The Smith Case
In Smith’s case, the mere fact that Smith had reached out to two coworkers to ask about whether they had been paid on time moved the matter within the realm of protected concerted activities. Even if the coworkers did not share Smith’s concerns about the late payments, Smith’s outreach “to them [was] an effort to instigate group action.” Moreover, “even if Smith did not engage in protected concerted activity, his discharge would violate the Act because [it] was motivated by the employer’s desire to prevent him from doing so in the future.” The employer was ordered to reinstate Smith with full backpay.
Note that Smith had not contract a union or expressed any intention to do so in the future. In other words, there is absolutely no union involved in the story whatsoever. It doesn’t matter because the NLRA is concerned with protecting “concerted activities” by employees, regardless of whether those activities involve a union or just spontaneous employee expressions of concern about working conditions. All that matters is that there is a collective (concerted) element involved.
The Burton Case
On the other hand, the Burton case took place in Ontario. The Ontario Labour Relations Act, like most Canadian collective bargaining legislation, does not refer at all to “concerted activities”, even though it was originally modelled after or inspired by the NLRA. When Canadian governments imported the NLRA model in the late 1930s and early 1940s, it made some changes, including in regard to the language governing “unfair labour practices.” Rather that protect a broad right of workers to engage in “concerted activities for mutual aid”, Canadian legislation used “trade union activities” as the protected activity.
So, for example, the core fundamental right protected by the OLRA appears in Section 5, which states simply that “Every person is free to join a trade union of the person’s own choice and to participate in its lawful activities.” Everything else in the legislation builds upon this cornerstone. Thus, all of the unfair labour practice provisions refer to right of workers to not be punished for supporting or joining “trade unions” or for participating in lawful “trade union activities”.
Therefore, it is the norm for folks to think of the OLRA as the legislation that deals with “trade unions”. Nova Scotia’s Trade Union Act might be a better title to describe how we tend to think about collective bargaining legislation in Canada, rather than the broader term “labour relations” codes or acts, since this legislation tends to deal with just one form of collective labour relations known as trade unionism.
Therefore, it should come as no surprise that Burton (who represented herself) did not treat her termination as a collective labour relations matter. She had not talked to a trade union or even considered talking to a trade union. Burton simply spoke to her coworkers about their wages, exactly as Smith had done. The cases are virtually identical factually. However, Burton did not file a complaint under the OLRA arguing that she was fired for “trade union activities.” It is easy to see why: just like Smith’s case, there is no trade union in her story at all.
Instead of filing an unfair labour practice complaint at the Ontario Labour Relations Board, Burton sued her employer for wrongful dismissal, a contractual claim applicable to non-union employees who have been terminated without the notice required by their contract. Her court case was a simple case about how much notice she should have been given and the enforceability of a notice of termination clause that purported to limit her notice to the absolute minimum required by law.
The Court ruled that her common law reasonable notice was 9 months’ pay, but a contract clause limited her entitlement to 8 weeks’ notice (plus severance pay) required by the Employment Standards Act was enforceable. The employer asked for elevated (“substantial indemnity”) costs from the self-represented Burton. In rejecting that claim, Justice Monahan noted that the employer “had terminated [Burton’s] employment on the basis that she had engaged in discussions regarding her salary with other employees.”
Therefore, there is no question that Burton was fired for concerted activities—something that should absolutely be illegal (see below)–but under the logic of contract law, that little point was irrelevant. In the end, while Smith got his job back with full back pay, Burton was ordered to pay the employer $54, 313 in costs!
Could Burton have gone to the OLRB instead of the Courts?
I have argued in the past (see here, here, and here) that “trade union” activities could mean, you know, “trade union activities” and not the broader “concerted activities’ used in Section 7 of the NLRA. The fact that I have not been able to locate a single case decided by a Canadian labour board that rules that “trade union activities” has the same meaning as “concerted activities” and applies to any situation in which two or more workers discuss working conditions (even without the thought of forming or joining a union) would support that narrow reading of “trade union activities.”
[I know of one case where the question of whether discussions of working conditions by non-union workers could be “trade union activities”, but that case was settled so the issue was never addressed. See Alagano v. Miniworld Management (1994, OLRB). If you know of other such cases, please, please let me know. I have been looking for cases for years. I’m even prepared to argue the case myself if someone is fired for talking to their coworkers about working conditions].
However, I am very open and sympathetic to the alternative argument, that “trade union activities” must be interpreted broadly to capture any concerted activity since any discussion amongst workers could eventually morph into trade union activities or, as my colleague Brian Langille puts it when we talk about this stuff, the labour relations legislation is an all-encompassing code that governs all forms of collective bargaining and collective activities in Canada, regardless of whether trade unions are involved or not.
Could it be that Canadian labour law has always protected any “concerted activity” exactly like Section 7 of the NLRA, just nobody ever bothered to test the point?
My thought has long been that it will be extremely useful to bring a test case with facts just like those in Smith and Burton to a Canadian labour board. Either:
- the board finds that “trade union activities” is so broad as to capture any concerted employee activity (whether involving a trade union or not) and therefore employees have a labour law remedy punished for this behaviour (like in Smith’s NLRA case); OR
- the board rules that “trade union activities” requires at least some evidence that the workers were contemplating forming, contacting, or joining a trade union, and therefore retaliation against employees like Burton and Smith is outside the scope of Canadian labour legislation.
If the latter outcome prevails, then there is a very interesting Charter Section 2(d) “underinclusive” freedom of association argument. Since the Charter guarantees employees a freedom to associate without reprisals, can government only protect that right if engaged through a single form (trade unionism)? Remember that the Supreme Court of Canada has emphasized repeatedly that freedom of association does not protect just one form of collective bargaining; it protects freedom of association, not “trade unionism.”
My concluding thought though is that the fact that in Canada we do not normally think of our labour laws as protecting “concerted activity” is reason enough for our governments to amend our legislation to make that protection explicit.
I have argued for nearly two decades now that governments should legislate a right to engage in concerted activities at work as a basic fundamental labour right, alongside the right to engage in “trade union activities.” If our legal model permits an employer to terminate someone like Burton for simply asking her coworkers if they are happy with their pay, then that is a failed legal model. Surely, at an absolute minimum in a democratic society, workers should be able to talk to their coworkers about working conditions without being fired for doing so. How is this even controversial?