Leap Day

The employment law question surrounding leap year is not whether there is an increase of women sexually harassing men, but calculation of wage costs.  Do employer’s get free labour on leap day? This was the position taken by CUPW in its leaflet “Canada Post’s Dirty Little Secret”.  The leap day pay issue arose with respect to RSMC’s (Rural Suburban Mail Carrier), a curious class of worker, in the  Canada Post system.  

“RSMCs are employees of Canada Post who are employed by Canada Post to deliver the mail in rural and suburban areas. They provide their own vehicles, hire their own helpers, and arrange for route coverage by replacement workers on days they do not work. They are paid on the basis of an annual salary, calculated based on the number of points of call, required daily kilometres, weekly average number to the door deliveries, and other factors determining the amount of time which must be spent delivering the mail.”

“In February of 2008 the Union published and mailed a flyer entitled “Canada Post’s Dirty Little Secret”, as part of a campaign to raise awareness and support for RSMCs in a dispute over unpaid work in leap years.” Because an annual salary was paid, the extra day in a leap year was not compensated.

CUPW paid for 12 bundles of flyers to be delivered to members of the public. Each bundle was to contain 100 flyers. The shop steward, Michael Danroth, who coordinated the delivery and paid for the mail, also took flyers out on his route. Management at Canada Post decided to audit his route and discovered that he had delivered 135 flyers.  This audit was conducted on the day of the mail delivery, February 29^th, by two members of Canada Post management visiting 700 “points of call”. (Given the additional cost of $3.92 for 35 pieces of mail as compared to the cost of two management workers (or were they free for the day too?) plus gas for the car for the day, it was probably not a sound economic decision.) (I also find it just a little creepy that members of Canada Post management might be snooping through my mail box.)

The union argued that the delivery was unintentional since the bundles were not accurately counted at 100. Evidence showed one bundle contained only 72 flyers. The arbitrator, nevertheless, found that Danroth intentionally delivered the extra flyers and upheld the dismissal. On appeal, the British Columbia Supreme Court upheld the arbitrator’s decision.

Black History Month

The Mayor of Toronto’s Proclamation for Black History Month 2012, states:

Black History Month reminds us that African Canadians have been at the forefront of the struggle for fair treatment and equal opportunity for all. It challenges us to reaffirm our efforts to address the causes and effects of racism and recommit ourselves to building an inclusive society.

Back in 1993 the Ontario Court of Appeal held that there is support for the view that “widespread anti-black racism is a grim reality in Canada and in particular in Metropolitan Toronto.” We still see plenty of examples of racism in the workplace today – though much of it, is subtle.

One of the most interesting decisions that I have read regarding anti black racism is Selwyn McSween v. Law Society.  This decision was released just one month ago. It is the dissenting opinion of renowned criminal lawyer, Clayton Ruby that is relevant to the struggle for fair treatment.  McSween went to law school at the age of 52. He was 58 when he was called to the Bar.  After articling with an established firm, he was unable to find a position as an associate with a firm.  He did find work as the CEO of the Caribana festival.  He determined that he wanted to do real estate law, though he had apparently not been exposed to this during his articles.  Eventually he began his own practice – in somewhat of an unorthodox fashion.  Through Caribana, he had met a para legal with experience as a real estate clerk. Discussing his law career aspirations with her led to a meeting in the clerk’s car where she offered to teach him everything she knew about real estate, give him an office, refer files to him, and not charge him for her processing of the files.  Sounds like a good arrangement which McSween accepted.  The arrangement lasted about 6 months during which 40 real estate transactions were processed. Unfortunately for Mr. McSween on at least 10 of these transactions fraud occurred.  It appears the clerk was behind the fraud. McSween was disbarred.

McSween was born in abject poverty in Trinidad and Tobago and came to Canada at the age of 22. He earned a B.A. at the University of Manitoba and then a M.A. (for which he received the gold medal). In 1976 he began a Ph.D at the University of Toronto.  Prior to law school he had an impressive career working as an investigator with the Ontario Human Rights Commission and then as a Pay Equity Officer with the Pay Equity Commission of Ontario.  Next he became Director of Policy in History and Culture for the Government of Ontario.  At one point he became a Special Advisor to the Human Rights Commission and a Director in the Citizenship Department.  Since leaving the practice of law he has been employed at York University in roles such as ombudsperson and director of human rights.

So what does this have to do with anti black Racism? McSween acknowledged responsibility for the mortgage fraud occurring on his watch but suggested that rather than being disbarred he should be allowed to resign.  The basis for his argument:  he was denied opportunities to properly learn the intricacies of real estate practice because of his race.  McSween states that he was denied appropriate articles of clerkship opportunities and then associate positions which left him accepting the relationship with the unscrupulous law clerk.  Prominent criminal lawyer Clayton Ruby (acting as panel member on the Law Society’s appeal tribunal) in a dissenting opinion wrote:

The existence of anti-black racism in Canadian society is not the subject of debate among reasonable people.  Indeed, judicial notice of systemic racism in Ontario has been accepted since R. v. Parks, supra in which the Ontario Court of Appeal took judicial notice of systemic anti-black racism in Canadian society.  The Court also acknowledged, at paras. 366-369, the devastating results of such acute disadvantage for black persons: unemployment, poverty, and denial of opportunity, the exact circumstances that are alleged by Mr. McSween in the current appeal.

 It is reasonable to infer that as a group, Afro-Caribbean Canadian lawyers are economically and professionally disadvantaged when compared with their colleagues, and that many face diminished opportunity as alleged in this case by Mr. McSween.

The hearing panel erred by failing to give sufficient weight to the systemic disadvantage experienced by Mr. McSween as a lawyer of Afro-Caribbean descent.  His employment and articling history of repeated rejection despite his impressive academic achievement signal this and can hardly be explained except on the basis of racial and age discrimination. 

Accordingly,  Ruby concludes that it would be appropriate to allow McSween to resign rather than to be disbarred.

Valentine's Day

To-morrow is Saint Valentine's day,
All in the morning betime,
And I a maid at your window,
To be your Valentine.
Then up he rose, and donn'd his clothes,
And dupp'd the chamber-door;
Let in the maid, that out a maid
Never departed more.

                                                                Shakespeare – Hamlet (Ophelia)

It will come as no surprise to many of you that Valentine’s Day can be a confusing time.  This may be a time when the “would be womanizers” are most confused about where the line is between normal human interaction and sexual harassment.  Expectation and anticipation abound. According to one source nearly $15 billion will be spent on this day in the United States alone.

The basis for a celebration of love on this date goes back to ancient Rome, when  February 13 – 15^th were celebrated as Lupercalia, a pagan fertility festival.  Young men would strip naked and use goat- or dog-skin whips to spank the backsides of young women in order to improve their fertility. A tradition of sending anonymous notes to the objects of one’s affections began around 1797 in England. 

Hallmark is celebrating the 100^th anniversary of its Valentine’s card and anticipates selling 160 million cards.

The tradition found its way into one sexual harassment case where two men purchased g-strings and sent them through inter office mail to 3 female employees.  The men then denied their participation.  Both were fired.

The one who played the lesser role brought an action for wrongful dismissal.  The court looked at the company policy, the company culture and the degree of dishonesty. All of these factors suggested that dismissal was too severe a penalty. 

Is the Super Bowl bad for the workplace?

I have heard varying figures on absence due to Super Bowl; one site states 7 million people will call in sick, another indicates that 1.5 million people will be absent from work and another 4.4 million will call in late;  the cost in lost production will be $820 million. That, of course, pales in comparison to the more than $11 billion that the Super Bowl injects into the economy.  The game itself is worth a billion dollars and is larger than the GDP of 25 countries. It’s a big deal. But is it big enough to warrant or excuse bad workplace behavior? 

Super Bowl XXXVII was played on January 26^th, 2003 in San Diego between the Oakland Raiders and the Tampa Bay Buccaneers.  The Dixie Chicks sang the Anthem and Shania Twain played the half time show. Fred and Andrea Tesselar weren’t among the 88.6 million people who watched the event, but Fred’s boss Howard Bowling was.  That afternoon, in whiteout conditions outside of Sarnia, Ontario, Fred and Andrea were in a motor vehicle accident in the company vehicle. Andrea was driving.  They were on company business – Howard had called Fred at 7:00 a.m. that day telling him that a part was needed in Wheatley about two hours away. Fred had just come back from Wheatley and wasn’t happy about making the return trip again - -but Howard pleaded with Fred, because everyone else at the company was going to be at a Super Bowl party at Howard’s brother’s place.  After the accident Fred called to advise Howard, but the partying boss was in no mood to take the call.   

On Monday Howard advised Fred that he had to ask head office what to do about the accident, given that Andrea was driving the company vehicle.  Throughout the week Fred continued to ask what was happening, but Howard remained evasive.  Fred even offered to pay for the damage to the vehicle himself.  Eventually Fred was fired for his efforts. 

At some point after the termination, Fred died and Andrea brought a case to the Labour Board to obtain termination pay which hadn’t been provided to him.  The Board awarded the statutorily required 8 weeks and sought more information to determine the amount of severance pay entitlement that there would be (It would have been slightly more than the $8400 in notice).  The Board does not have jurisdiction to award damages for bad faith, or punitive damages, which might have been sought in a wrongful dismissal case.  

The law does provide that a claim for wrongful dismissal can be maintained by the estate of a deceased worker.  Had Fred’s estate brought a claim, the case may well have been worth $60,000 -- $100,000. That number is based on the provision of reasonable notice in the range of 10 months plus bad faith damages (which were more readily available in 2003 than today) and perhaps punitive damages.