“You have the right to remain silent. Anything you say can and will be used against you,” is a phrase familiar to anyone who watches crime dramas on television. What even the most avid Law & Order fans may not know is that a unionized employee has the right to remain silent in the context of a workplace investigation into alleged misconduct (with certain important exceptions).

The leading case on this topic is Tober Enterprises Ltd. (Re)1. A grocery store employee was charged for allegedly selling anabolic steroids to a police informant. He sold them from the store during working hours and used the store’s telephone to contact the informant. The charges were later dropped when it turned out that the substance was not actually steroids.

The employee was suspended from work immediately when charged. The store asked the employee to explain his conduct (including his frequent use of the store’s telephone). When the employee refused, he was fired. The union grieved his termination. An arbitrator found that dismissal was excessive (given that the charges were dropped) but that an unpaid suspension for the employee’s failure to explain was warranted. The union sought review by the British Columbia Industrial Relations Council.

The Council found that a unionized employee’s failure to explain alleged misconduct is not an independent cause for discipline. In short, an employer must rely on the substantive misconduct as the cause for discipline, rather than the failure of the employee to explain it. The Council was quick to note that staying silent can have other consequences. For example, if an employee chooses to remain silent, the employer’s evidence of misconduct may be uncontested and therefore justify discipline - the employee misses her chance to tell her side of the story.

There are two exceptions to a unionized employee’s right to remain silent:

  1. a deliberate attempt to mislead an employer by a false or misleading explanation may be cause for discipline; and
  2. an employee knowingly allowing his or her silence to damage the legitimate business interests of the employer may be cause for discipline.

The first exception was briefly considered in Overwaitea Foods / Save-on-Foods British Columbia v. United Food and Commercial Workers Union, Local 15182.  In this case, a junior employee took an extra 15-minute break. The employer had video evidence. The employee was called into meetings with her manager on two occasions. On both occasions, the manager gave the employee an opportunity to come clean. At the first meeting, the employee didn’t mention the extra break; at the second meeting, the employee lied. As a result, she was fired.

The union grieved the termination. At arbitration, the employee admitted that she had “lied”, but the union argued that lying or failing to admit the misconduct could not be grounds for discipline. The employer successfully argued that the failure to admit the extra break at the first meeting “was a lie of omission” and fit in the Tober exception as a deliberate attempt by the employee to deceive her manager, and therefore could be grounds for discipline. Despite this, the arbitrator found that a suspension was sufficient and ordered conditional reinstatement.

The second exception was successfully raised by BC Ferries in British Columbia Ferry and Marine Workers’ Union v. British Columbia Ferry Services Inc.3. This case arose out of the sinking of the Queen of the North ferry in 2006, in which two people died. Following the tragic event, BC Ferries launched an internal inquiry with the goal of releasing a public report. It sought interviews with key employees, including Karl Lilgert and Kevin Hilton who were responsible for navigation when the ferry ran aground. In addition to the BC Ferries inquiry, there was an ongoing criminal investigation.

Lilgert and Hilton refused to answer questions about the time period immediately before the accident unless that information would be kept confidential. BC Ferries refused the confidentiality and suspended them without pay for refusing to answer. The union grieved the suspensions.

At arbitration, the employees argued they had a right to remain silent, and that silence alone could not amount to grounds for discipline. The employer argued that the employees’ silence was harming its legitimate business interest by impacting its ability to produce a detailed public report.

The arbitrator agreed with the employer: in these circumstances, BC Ferries’ duty to make full disclosure outweighed the employees’ right to remain silent. The union applied for a reconsideration by the Labour Relations Board and further judicial review. In both cases, the decision was upheld. On judicial review, the Court made a comment about the exceptional facts of the case: “there is no suggestion in either the [arbitration decision] or the [Board decision] that any business interest of an employer, however, mundane or marginal, will be sufficient to negate the general rule in Tober” [emphasis in original]. This statement clearly indicates the Court thought that only a significant business interest will be sufficient to trigger the exception.

These decisions demonstrate that, absent an employer’s significant and legitimate business interest, unionized employees have a general right to remain silent in workplace investigations. Despite that right, employees may not allow their silence to deliberately mislead their employers.