Union officials provide essential services to their members, supporting workers when they have issues with their employers and representing them at difficult times. But not every individual case is successful and some issues lead to different opinions within unions. Particularly given the public status of many union officials, there are unfortunately situations where they are subject to harassing behaviour or comments.
In this post, I’m not going to discuss the protections that are available in the workplace, in a situation where one staff member is subject of alleged harassment by another staff member. In these situations, there are clear legal obligations that fall on an employer to deal with harassment.
This post will look at the trickier situation of harassment by people who are not other employees, but are either members of the union or of the general public. What are the mechanisms available to deal with harassment in these situations? Unfortunately, the answer is that while there are routes to challenge harassment, they can be difficult to access.
Union policies and constitutions
Certainly, the easiest mechanism to access will be the union’s policies and/or constitution. These will often have provisions for trying to deal with issues between union members. This may include an option of mediation, where appropriate, or an investigation that can lead to internal union remedies.
But these mechanisms will only be able to apply in situations where the alleged harasser is a member of the union, and not just a member of the bargaining unit (that is, a person who works in a unionized workplace but doesn’t join the union as a member). The remedies that these internal union processes can give are also more limited and can generally only deal with involvement in union events or activities. Unions don’t have the authority to limit a person’s behaviour or impose consequences more broadly.
Reporting the harassment to the forum where it’s found
Today, in many cases, harassment of union officials may happen online. In these cases, there will probably be a mechanism to report the activity on the platform where it happens, such as Facebook or Twitter.
Unfortunately, these reporting mechanisms are often unsuccessful and online platforms have taken a very narrow view of their role in policing online harassment, something they have been heavily criticized for. Their complaint mechanisms give limited routes for challenging posts or accounts, and anecdotally, complaints seem to overwhelmingly be unsuccessful, even for what seem like clear breaches of their terms of service.
Civil court actions
The other avenue available to challenge harassing behaviour is a civil court action. This has the advantage of being available against anyone – not just other members of a union – and allows you to claim damages as a remedy. However, civil claims will tend to be longer and more expensive than other routes might be.
A civil claim also needs to fall into certain “causes of action.” What this means is that you can only sue someone if the actions that you say they did fall into certain categories, called ‘causes of action’, that can be the basis of a law suit. These include:
Defamation is almost certainly the most common claim in these situations. It applies to statements or other communications that harm the reputation of the target, which can include attacks against union officials (See Labourers’ International Union of North America, Local 183 v Castellano, rev’d in part 2020 ONCA 71).
Yet even where a communication will harm someone’s reputation, the person making it can still claim certain defences, which nullify the legal claim. Some of the most common defences are were the statement is factually true or where it meets the legal test to be considered a “fair comment” on matters in the public interest.
There is also a specific defence, called a ‘qualified privilege’, that applies to criticism of union leaders. There are a number of these ‘qualified privileges’ that apply in situations where courts have decided that society wants to encourage the free expression of ideas, so defamation claims should be limited. In this case, the qualified privilege applies to criticism of union leaders made by members of the union to other union members and works as a defence to the defamation claim.
Still, even where this ‘qualified privilege’ applies, it can be rebutted (or nullified) if it was made out of malice, because the person making the statement had an ulterior purpose, knew it was false, or had a reckless disregard for the truth. Where this happens, the defamation claim succeed, and the plaintiff will win.
Intentional infliction of mental stress
A second civil claim that applies in these situations is called intentional infliction of mental stress. To paraphrase the legal test, this can apply to situations where a person acted in a “flagrant and outrageous” way, that was calculated to produce mental harm that they knew would happen, and that in fact resulted in a visible and provable illness (Boucher v Wal-Mart Canada Corp). As you can probably gather, this is a high standard and a fairly difficult one to meet.
In an attempt to give a remedy for serious harassment over the internet, in 2021, an Ontario court created a claim for ‘internet harassment’. To prove this claim, a person needs to show that the harasser “maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance,” and that they intend to cause harm (Caplan v Atas, at para 171). Again, this will be a high threshold to meet.
Intrusion upon seclusion
Finally, where the harassing behaviour specifically infringes someone’s private life, without legal justification, in a way that is seen as “highly offensive causing distress, humiliation or anguish,” it may be possible to make a claim of ‘intrusion upon seclusion’ (Jones v Tsige).
As this post hopefully makes clear, there are several routes available to deal with harassing behaviour, but unfortunately, deciding which route might work in your situation and carrying it through to the end can be a long and winding road. If you are unfortunately faced with harassing behaviour, it may be helpful to get advice on how you approach these issues in the most practical and effective way available.