Public service employee faces possible discipline for political song “Harperman”

A scientist in the federal public service made national headlines last week when he was suspended with pay pending an investigation into a protest song he wrote about the Harper government. Tony Turner and a chorus of others appeared in a video performance of the song, “Harperman“, which was posted on YouTube last June and had garnered approximately 50,000 views. The video prompted an investigation, according to news reports, into whether Mr. Turner has violated the Values and Ethics Code that applies to employees in the federal government. Mr. Turner is being represented by his union, the Professional Institute of the Public Service of Canada, in the investigation.

This case has brought widespread attention to the interesting issue of the political and free speech rights of public servants. Public service employees enjoy the right to free expression under the Charter of Rights and Freedoms, including political expression, but courts have held that these rights are not absolute: they are limited based on the duty of loyalty to the employer, as well as the need for a politically neutral public service.

How these competing interests are balanced in any one case is difficult to predict: the central question is whether the political activity or criticism impacts the employee’s ability to perform his or her duties as a public servant effectively, or whether it impacts the public perception of that ability. The following factors have been considered in past cases:

• The nature and scope of the political activity in question;
• The position and responsibilities of the employee engaging in that activity;
• Whether the individual identified himself or herself as a public servant in the course of the political activity; and,
• Whether the criticism was particularly sustained or vitriolic in nature.

The question remains how these considerations will be applied in Mr. Turner’s case, as the investigation has not yet concluded. One thing that appears certain is that the results of the investigation will be closely watched by the Canadian public—ironically, the suspension and investigation have brought far more public attention to the song than it would ever have otherwise received (in the few days since this story broke, “Harperman” has vaulted from 50,000 to over 400,000 views on YouTube).

Another question that remains: can someone really be disciplined for writing something this catchy?

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]