Oct 1, 2007 | Article
A Duty to Explain to the Employer When Potential for Self-Incrimination: BC Ferry Muddles the Already Murky Waters
By Elichai Shaffir
Re British Columbia Ferry Services Inc. and B.C.F.M.W.U., (2007) 159 L.A.C. (4th) 165 (BC Ferry) marks the latest addition to the ongoing debate about an employee’s obligation, if any, to provide an employer with an explanation for alleged misconduct. At the heart of this matter lies the balancing of competing interests. On the one hand, an employee has an interest in “remaining silent” when he or she may be liable to subsequent criminal charges, as any self-incriminating admissions made during a workplace investigation would not be privileged and admissible as evidence in a criminal proceeding. On the other hand, the employer has an interest in having an employee explain suspicious circumstances and to conduct an investigation into alleged misconduct.
There is no consensus within the arbitral jurisprudence on this matter. While one line of reasoning maintains that an employee cannot be disciplined for failing to explain situations that appear suspicious, another line of reasoning suggests the opposite. According to the latter, an employee’s refusal to explain can amount to an act of insubordination which is punishable independent of any alleged misconduct. Unfortunately, BC Ferry does not resolve these different lines of reasoning.
Discipline Cannot Result From a Failure to Explain
For those who maintain that an employee has the right to remain silent, the obligation to give an explanation has been described as an opportunity and not a duty. It is up to the employer to discover and subsequently prove its case without the employee’s assistance. As stated in Re Tober Enterprises Ltd. and U.F.C.W. Local 1851,  B.C.L.R.B.D. No. 51 (Bruce) (Tober Enterprises), “it is the proven substantive misconduct, and not the failure to explain which constitutes just and reasonable cause for discipline or discharge. The failure to explain, without more, simply cannot be regarded as culpable behaviour.”
An employee’s right to privacy has also been relied upon to support the principle that an employee has the right to remain silent. It is now widely accepted that absent contractual requirements, an employee need not submit himself or herself to a search of his or her person or possession. As some arbitrators have noted, if an employee need not submit to a search, he or she should similarly not be required to make a statement which may implicate himself/herself.
Discipline Can Result From a Failure to Explain
The second line of reasoning holds that failure to explain alleged misconduct may constitute separate misconduct and deserving of discipline in and of itself. In these cases, arbitrators have upheld discipline for a failure to explain in a number of circumstances, including the following: where an employee is found to be in possession of company property; where the employer is able to make out a prima facie case of misconduct; and and mostly recently in BC Ferry, where the employer’s legitimate business interests outweigh the employee’s personal freedoms.
Without expanding upon the first two scenarios in any great level of detail, suffice it to say that proponents here maintain that suspicious circumstances require an explanation. When a prima facie case of employment misconduct has been made out, the burden of proof shifts to the employee to provide an adequate explanation for his or her actions. If an employee fails to provide an explanation, disciplinary action may be merited.
Another line of cases, culminating with BC Ferry, holds that an employee’s right to remain silent can be abrogated in light of the legitimate business interests of his or her employer.
The facts of BC Ferry were as follows. Following the sinking of a vessel, the British Columbia Ferry Services Inc. established a Divisional Inquiry Panel to investigate and report on the accident. Based on the advice received from independent legal counsel, two crew members refused to answer any questions about the critical period of time before the vessel’s grounding because any statements given could be admitted in future criminal proceedings. Their silence was seen as a continuing act of insubordination and, accordingly, both employees were held out of service without pay. There were no criminal charges or investigation at the time of the employee’s refusal. The Union grieved their suspensions.
In reaching his conclusion, arbitrator Foley maintained that “The two employees’ refusal to provide the Divisional Inquiry with any information about the critical period has to be balanced against the Company’s legitimate business interests in obtaining their testimony about the critical period and then making public its complete report.” In balancing these interests, arbitrator Foley noted that the Employer had made no particular allegations of wrongdoing against either employee. Additionally, he maintained that any future repercussions resulting from testifying were far outweighed by the Company’s “legitimate entitlement to have available information about what occurred during the vessel’s voyage, so that it can make a full public disclosure on the incident.” Accordingly, the grievances were denied.
Implications and Conclusion
The extent to which this case will contribute to the larger debate about an employee’s obligation to explain remains to be seen. Arguably, almost anything can be categorized as a company’s legitimate business interest. That being said, arbitrator Foley seemed to inextricably link the Company’s legitimate business interest to a public purpose of full disclosure. And, when balancing the competing interests, the fact that neither employee had been criminally charged nor were either of them under investigation seemed particularly relevant.
How an arbitrator will apply the legitimate business interests exception in future cases is uncertain. For that matter, and on a more general level, it is also uncertain which line of authority an arbitrator will adopt when confronted with an employee’s failure to explain. This area of the law remains in a state of flux and BC Ferry has added uncertainty to this debate with its added element of “the legitimate business interest” of the Employer as balanced against the right of an employee to remain silent.