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With the approach of the federal election, employers have election-time obligations that arise well before voting day. Employers must be aware that whether the issue is allowing time to vote or respecting an outspoken employee's right to express his or her political opinions, a high degree of protection is afforded to political speech and participation in public life.

ELECTION DAY OBLIGATIONS

The Canada Elections Act[1] gives every employee who is qualified to vote the right to take three consecutive hours, while the polls are open, for the purpose of voting. If an employee's hours of work do not allow for three consecutive hours to vote, the employer must grant time off as necessary to meet the three hour requirement.[2] Time off for voting may be granted at the time of day that best suits the employer.[3]

The Act states that employers may not make a deduction from the wages of an employee or impose a penalty on an employee for the time he or she is given to vote. Accordingly, if employees are released from work to vote, they must be paid as if they had worked a full shift.[4]

Employers who do not comply with the Act risk severe penalties including fines and imprisonment for failing to allow adequate time off, for making a deduction from wages for time off, or for intimidating or otherwise interfering with employees' rights to a minimum voting time.[5]

LEAVE TO CAMPAIGN

The Act provides that if an employee covered by Part III of the Canada Labour Code applies for a leave of absence to seek nomination as a candidate and to run in the election, the employer must grant leave with or without pay for the period requested.[6] Apart from this statutory requirement, there is no legal requirement for employers to provide leave to employees for the purposes of campaigning in a federal election, although it is uncertain whether an employer would have just cause to dismiss an employee who takes time off work without leave for the purpose of campaigning. Faced with this question, a court would likely consider all of the circumstances surrounding the employee's absence from work to determine whether dismissal is justified.

POLITICAL EXPRESSION AND EMPLOYEE FREE SPEECH

While few employees will request leaves of absence to campaign, many more will participate informally in public debate in the weeks leading up to the election. Because of the importance of political expression to our democracy, employers are limited in their ability to constrain employees who publicly express political opinions that run counter to an employer's interests. Similarly, few constraints may be placed on an outspoken employee whose political views create workplace tensions.

An employer's ability to restrain an employee's political expression depends on whether the employee works in the private or public sector. For public servants, participation in partisan politics is often considered to be incompatible with their duty to maintain the impartiality of the public service. The new Public Service Employment Act,[7] which came into force on December 31, 2005, allows public service employees to engage in political activity (defined as being a candidate, or supporting or opposing a candidate) so long as it does not impair, or is not perceived as impairing, their ability to perform their duties in a politically impartial manner.[8] Whether the political activity impairs an employee's ability to perform his or her duties will depend on the employee's position and visibility within the public service.[9] In Osborne v. Canada (Treasury Board),[10] the Supreme Court of Canada held that the need for impartiality is not constant throughout the civil service hierarchy. According to the Court, the same standard does not apply to a cafeteria worker as to a deputy minister.

Likewise public service employees are not generally permitted to publicly criticize government policy.[11] This is clear from the cases of a Health Canada scientist who appeared on national television to criticize the Government's ban on Brazilian beef and her colleague, who told the media that the Government's reason for stockpiling anthrax antibiotics and smallpox vaccine after the 9/11 attacks was to make itself look good. In each case the Federal Court held that the employees were properly disciplined for failing to raise their concerns internally and for breaching their duty of loyalty.

In addition to recent decisions which have confirmed that the Canadian Charter of Rights and Freedoms protects public service whistle-blowers who disclose matters of legitimate public concern,[12] whistle-blower protections are enshrined in Bill C-11, the new Public Servants Disclosure Protection Act, which received Royal Assent on November 25, 2005. Once in force, this statute will enable public service employees to disclose wrongdoing in certain circumstances and will protect them from reprisals. In many instances, public servants will need to raise matters internally or with the Public Service Commission and thus will be limited in their ability to speak out publicly on issues of concern.

Other public employees, such as teachers and health care workers also owe a duty of loyalty to their employers. These employees enjoy Charter protection of freedom of expression and are not constrained by the Public Service Employment Act. The B.C. School Boards learned this in August 2005, when the B.C. Court of Appeal held that the School Boards had violated teachers' rights to freedom of expression by telling the teachers not to use school bulletin boards or parent-teacher interviews to distribute information about the impact of class size on education.[13] The Court of Appeal, in a decision that has been appealed to the Supreme Court of Canada, upheld the teachers' right to expression because it did not interfere with the efficient and effective operation of the schools. The Court held that the teachers' discussion of the need for resources for public schools should be protected as political expression that benefits society as a whole.[14] This case suggests that public employees, apart from public service staff, enjoy fairly broad protections when it comes to voicing concerns about employer policies.

Private sector employees also owe a duty of loyalty that prevents them from publicly criticizing their employers. In addition, an employee may be dismissed for conduct outside working hours that is incompatible with his or her duties, that prejudices the employer's interests, or that damages the employer's reputation. However, it is very difficult to imagine circumstances where an employee's expression of political views would violate this duty of loyalty or so damage the reputation of a private sector employer that it would provide cause for discipline or dismissal.

In the province of Quebec, the situation is somewhat different as employees are protected by the Quebec Charter of Human Rights and Freedoms[15] which prohibits discrimination based on political convictions. "Political convictions" would be interpreted broadly to include any partisan activities or participation in a political party. The Quebec Charter would protect an employee's political convictions whether or not the employee is a member of a political party or has any recognized political allegiance. An aggrieved employee may file a complaint with the Commission des droits de la personne et des droits de la jeunesse. These protections would likely extend to employees in both the public and private sectors.

What of the employee whose political opinions create workplace tensions or make other employees uncomfortable? To the extent that an employee mounts his or her soapbox on the employer's time or interferes with productivity, the conduct may be corrected. Discipline may also be warranted where the employee's speech trenches on the rights of groups protected by human rights legislation. Apart from these narrow exceptions, employees are free to speak their minds on political matters without interference from their employers.

CONCLUSION

Apart from allowing employees time off to participate in the upcoming federal election, employers must respect employees' rights to free speech and not interfere with employees' political expression. While public service employees are limited in their ability to express political opinions publicly in ways that private sector employees are not, in either case discipline is justified only where the employee has breached his or her duty of loyalty. Employers must generally respect and uphold the right of their employees to express their political views.

[1]. 2000, c. 9.

[2]. Ibid. section 132(1).

[3]. Ibid. section 132(2).

[4]. Ibid. section 133.

[5]. Ibid. section 500.

[6]. Ibid. section 80.

[7]. 2003, c. 22, s. 12.

[8]. Ibid. section 113(1).

[9]. Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.

[10]. [1991] 2 S.C.R. 69.

[11]. Chopra v. Canada (Treasury Board), 2005 FC 958, [2005] F.C.J. No.1189 and Haydon v. Canada (T.D.), [2001] 2 FC 82.

[12]. Chopra v. Treasury Board (Health Canada), 2001 PSSRB 23.

[13]. British Columbia Public School Employers' Association v. British Columbia Teachers' Association, 2005 BCCA 393.

[14]. Ibid. at paras. 44 and 68.

[15]. R.S.Q. c. C-12 section 10.

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

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