Saskatchewan Court of Appeal Finds Decision on Employer Communications Issue Reasonable

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP. 

On December 12, 2016, the Saskatchewan Court of Appeal issued a decision upholding the reasons of the Saskatchewan Labour Relations Board on the issue of employer communications and the analysis for when a unionized employee is intimidated, threatened, or coerced by employer communications.

Employer communications generally refer to information passed on from the employer to unionized employees about workplace issues like bargaining.

During the course of 2008 collective bargaining, the Saskatchewan Health Regions and their bargaining agent SAHO initiated communications which included press releases, radio, television and print advertisements, tent cards, posters, letters to employees and a web page related to the bargaining proposals brought forward by the Health Regions. The Unions involved brought the matter to the Saskatchewan Labour Relations Board and took issue with the communications claiming they violated section 11(1)(a) of The Trade Union Act, in that the Unions thought the communications were intimidating, threatening and coercive.

Prior to the 2008 collective bargaining round, there were legislative changes made to The Trade Union Act that the Health Regions interpreted as allowing increased employer communications.

The Board ruled that with the exception of communications on one bargaining issue, all other communications did not violate The Trade Union Act.  The Board outlined that employees are capable of weighing information from employers and considering it without necessarily being intimidated.

The Unions involved applied for judicial review of the decision and the Court of Queen’s Bench in reviewing the decision found certain aspects of it unreasonable and referred it back to the Saskatchewan Labour Relations Board for reconsideration. SAHO and the Health Regions appealed the Queen’s Bench decision to the Saskatchewan Court of Appeal.  The Saskatchewan Court of Appeal allowed the appeal on the issue of permitted employer communications under section 11(1)(a), holding that the Board was correct in ruling that the actions of the Health Regions and SAHO related to communications were not off-side the employer communication provisions (except for communications on one bargaining issue).  The decision was referred back to the Board for further analysis in other areas.

The Court of Appeal decision is an important one for all unionized employers as it found the Board’s analysis for considering whether or not employer communications are an unfair labour practice reasonable. In establishing whether or not a violation of section 11(1)(a) has occurred the decision sets out the Board’s test to be “what impact the employer communications would have on an employee of reasonable intelligence and fortitude.”

The Court of Appeal also outlined that the Board was reasonable in effectively concluding that employees are “somewhat more robust” in withstanding employer communications given the legislative changes to the employer communication provisions. The Board’s reasoning was more explicit, stating that it will not assume “employees are timorous minions cowering in fear of their masters”.

While the Court of Appeal decision indicates that the ability of employers to communicate has increased since 2008, employers should obtain legal advice before engaging in employer communications.

A link to the complete decision is found here.