No-one has the right to “free speech” in workplace political discourse
Published Oct 20, 2023 • 4 minute read
In my 30 years of writing, I do not recall a piece getting as much of a response, both locally and internationally, as the one engendered by last Saturday’s column on what to do about pro-Hamas attitudes in the workplace.
Surprising to most, Jewish Canadians, according to Statistics Canada data, have a dramatically greater chance of being the victim of a police-reported hate crime than any other group. Many have written to me with concerns or seeking representation against their employers relating to anti-Semitism at work, with the anti-Israeli and anti-Jewish commentary resulting from the recent conflagration being the tipping point in deciding to finally launch legal proceedings.
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Others are upset that their employers have made statements suggesting moral equivalence between the barbaric Hamas attacks and Israel’s response. They note that while there have been pro-Hamas rallies cheering what occurred — including rapes, beheadings and torture — no-one has cheered, not in Israel or here, in response to the obviously regrettable Palestinian civilian casualties from the war.
As result they have felt so alienated in their workplaces that they have asked what their prospects are for claiming constructive dismissal or launching human rights actions on the basis that their employer has created a poisoned work environment based on their religion.
If it is nothing more than expressions of moral equivalence, that is likely insufficient to ground a constructive dismissal action, which requires a court to be convinced that no reasonable person could tolerate continued employment in that workplace.
Another series of calls are from employers concerned that workplace debates have created schisms between groups of workers, divisions that are injurious to morale. My answer there is simple. A workplace is a place to work, not an environment for political debate and open letters between employees. Such letters are not merely to be discouraged, but prohibited. No-one has the right to “free speech” in workplace political discourse and, if it is going to alienate any worker, it should not be permitted by the employer. Indeed, an employer permitting open letters between employees could lead to a human rights violation by creating a poisoned atmosphere based on creed or religion, for which not only the employee sending the note but the employer could be liable.
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And then there is the union movement. A number of members of CUPE Local 3906, which represents many McMaster University employees, have asked us for assistance, as its pro-Hamas statements, which were “liked” by union president Fred Hahn on social media, have them bitterly resenting paying dues to support what they view to be anti-Semitic activities.
A similar issue arose recently when someone leaked the recording of a Zoom meeting with approximately 120 union leaders from various unions participating, plotting strategy to oppose those parents who sought the right to be told by their school if their young children are asking to be identified other than by their birth gender, including any counselling in anticipation of gender reassignment surgery. With no-one on the call protesting, such parents were referred to as fascists and white supremacists, with one noting that they had “dealt with such Nazis before.” Not one person in that large meeting even suggested that these might be debatable issues.
Independent of what side you might be on in this debate, there is no way these parents should have to pay union dues to unions labelling them as fascists for wanting to know what’s up with their children.
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Much of our union leadership has been captured by a small number of special interest groups which do not reflect the wishes of their memberships.
In all Canadian provinces, we have the Rand formula of compulsory union dues for all but the very few that can show that they belong to a religious group prohibiting membership in unions. Even then, they have to make a complicated application to pay monies to charity instead. But there is no ability to not pay dues to a union demonstrating animosity to that union member’s interest, or religion.
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It will take a legislative amendment to change that, which I obviously strongly encourage. I hope Ontario’s Ford government and others will quickly visit this issue.
But if that is too much for any of our governments, then they should pass legislation leaving compulsory dues limited only to collective bargaining purposes and forcing unions to collect donations from their members for any political causes they may wish to champion.
Watch how quickly that well then dries up.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
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