Some of the trickiest situations unions face when representing members facing disciplinary investigations by their employers arise where the same activity has attracted the attention of the police. That is because the rules surrounding police investigations and workplace investigations are incompatible.
One of our most fundamental democratic rights, enshrined in the Canadian Charter of Rights and Freedoms, is freedom from self-incrimination. We have a right to maintain silence in the face of police questioning and cannot be compelled to testify against ourselves in a criminal court.
That does not necessarily apply to employees under investigation by their employers, even if their alleged misconduct could amount to a crime, and even if they are under active police investigation. An employee’s right to remain silent when questioned by their employer dissolves where the conduct under investigation could have a significant impact on the employer’s business interests.
As you can imagine, incidents which might inspire police involvement also tend to threaten the employer’s reputation. A rather spectacular case in point arose from the sinking of the BC Ferries vessel Queen of the North. The BC Labour Relations Board upheld a ruling by arbitrator Brian Foley that the crew members in command of the vessel when it ran aground could be disciplined for refusing to co-operate in the employer’s investigation, even though they were subject to criminal prosecution over the same incident.
The employee and the union face a dilemma: remaining silent in the employer’s investigation may be a whole new basis for discipline and facilitate the worker losing their job, but co-operation could provide evidence facilitating their criminal conviction.
In these situations there is a key question the employee must consider: which is the greater calamity – losing their job, or a criminal conviction? For minor offences, where the likely sentence is not onerous, the answer may not be obvious. A fine or even a brief period of incarceration may have less serious consequences for the worker than the loss of their job, and co-operation in the employer’s process may be the better choice even if it undermines their criminal defence (though a minor conviction, even for off-duty misconduct, may sometimes also help seal the worker’s fate in the hands of the employer – the situation is rarely simple).
In these cases, it is vital that the employee receives legal advice from counsel who are able to estimate the probable outcome in both the employment context and the criminal context, and guide the worker and the union through both sides of this dilemma.