International Day of Mourning

Today, April 28th, is the marked to honour those killed at work. Worldwide, work kills more people than wars. More than two million each year -- that's 6000 workers each day who die on the job. Canada's number is 5 per day.

Sex with the Judge

In Douglas County, Colorado, a 29 year old female prosecutor, Laurie Steinman, was fired December 22nd for having sex with a Judge, 57 year old Grafton Biddle, who resigned on December 18th. The relationship came to light when Biddle’s 4th wife wrote to the chief judge. Apparently, they were having sex in his chambers and in the showers in the womens’ locker room. The Attorney Regulation Council filed complaints against the two last Friday. Both now face disciplinary sanction up to disbarment in addition to losing their jobs. (Rockymountainnews.com)

While, Boston Legal’s, Denny Crane (William Shatner) is not likely to fire his partner Alan Shore (James Spader) whose tryst with a judge, also in Chambers, was revealed in the courtroom during a motion, perhaps we can expect the State Bar to take action against them too. The judge found against Shore’s client. Interestingly, one of the trysts in the Biddle/Steinman affair occurred while he was mentoring her on a case she lost. One concludes that it is not good for the win record to sleep with the judge.

In the same episode, Denny Crane found himself hot water similar to that of Imus when during an employment interview Crane told the candidate that he was articulate. When pressed, Crane said, "you don’t sound black". The partnership immediately convened a meeting to vote on dismissing Crane. The press were all over it, and firm partner, Shirley Schmidt (Candace Bergen), blamed white corporate america, the firm’s client base, for wanting their lawyers to sound like themselves. In other words she put Crane's comments into context.

Electra, er . . . Erotica, er. . . Errata

I erroneously posted in my April 17, Anniversary review of the Charter, that the Skapinker case was the first employment case to consider the Charter. Having had occasion to do a little research on Non Standard Employment, I discovered that the Westerhouse case was the first. In that case the accused and her friend, were "working girls" who approached an undercover police officer and offered to "work" for the fellow in exchange for money. They argued that the Calgary by-law that prevented them from working the Streets infringed on their s.7 rights. Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Unfortunately, that argument was dropped by the time the case reached the Supreme Court of Canada.

Long Black Train

In what seems like a scene from a movie, a CP rail engineer was killed Monday when the train he was operating careened out of control down a steep mountain grade in Trail, BC. The engineer, Lonnie Plasko, told his two crew members to jump from the train while he continued to try to prevent the 10 car train from crashing into the nearby parking lots and pipelines of mining company Teck Cominco.

As I wrote on Monday, regarding the Toronto Subway crash where the operator of the train was also killed, in addition to the tragedy itself and whatever other physical injuries, there will be harm to the other employees’ mental health. In fact, "CP Rail spokesman Mark Seland said the two surviving crew members have been offered criticial-stress debriefing and will be interviewed to help determine the cause of Monday's crash."(canoe.ca). The other employees not only witnessed the death of their colleague but presumably were in the face of imminent death themselves.

One assumes that the "critical stress debriefing" will include counselling and other forms of mental health support to mitigate against the onset of PTSD. However, despite counselling, most of us would probably require a little time away from work to deal with the overall stress of the situation. For the stress to be compensable, a diagnosis of acute stress is going to be required and although Board policy states that the diagnosis must come from a psychiatrist or psychologist, in short term claims in circumstances such as this it would not be unreasonable to get the diganosis from a family doctor.

In the end, one thinks about the job of the train operators and the risks involved. I am reminded of the song by Josh Turner, Long Black Train, where he sings "There's an engineer on that long black train making you wonder if the ride is worth the pain"

More Shock Jock Context

Shock Jocks, as crude radio hosts are called, like all radio personalities, get paid to bring in an audience. Where there’s an audience there’s an advertiser. CBS has obviously done well by using shock jocks having employed Imus for 30 years and Howard Stern for a many years as well. As I mentioned in my post on Imus, it is more than a little disingenuous to fire them for what they are paid to do. The question, of course, is whether the jocks are doing what is required or whether they have stepped over the line.

I stated that if Imus’ comment is taken in context, as it would be required in Canadian law, one would have to say that the context didn’t warrant dismissal. But that was the result. In a similar incident with two more of its shock jocks, Jeff Vandergrift (JV) and Dan Lay (Elvis), CBS meted out discipline short of dismissal. The jocks were suspended.

This is a curious result if one, in comparison to the Imus incident, looks at the context. JV and Elvis planned a broadcast prank call to a chinese restuarant. During the call for take out food, they asked a male employee to "tell me about your tiny egg roll" and then made an order for "very large slimp flied lice". They also made sexual comments to a female employee telling her they wanted to go to the restaurant to see her naked and referring to her body parts as "hot, Asian, spicy". These were not off the cuff remarks. They were planned and deliberate. And, more importantly, they replayed the segment on the air a second time a week later. Imus made his comment as part of an on air dialogue. It was not thought out – perhaps he should have known he was crossing the line given his experience, but that’s a tough call. JV and Elvis, on the other hand had time to think about whether it was over the line before they aired it the first time. More importantly, they did this the day after the Imus scandal broke. If they were uncertain about whether the comments might be over the line prior to the Imus incident, they certainly knew after. CBS shouldn’t have thought twice about terminating their employment. Instead they take the cautionary route. Why?

Could it be that when CBS hired the two, they had already been fired from a previous station for making sexist comments?

Sunday Mornin Comin Down

"Well I woke up Sunday morning with no way to hold my head that didn't hurt. And the beer I had for breakfast wasn't bad so I had one more for dessert." Those words penned by the great Kris Kristofferson in 1970 might not have resonated so well in a society where Sunday work was the norm. Instead of "stoppin by the sunday school and listenin to the song that they were singin", the "I" of the song may well have been on his way to work.

Today, April 24th , marks the 22nd anniversary of 1985 the Supreme Court of Canada decision in R.v Big M Drug Mart. In that case Big M Drug Mart had been charged under the Lord’s Day Act with carrying on business on Sunday. Or as Justice Dickson so nicely put it: "The respondent Big M was commanded by Her Majesty The Queen to face prosecution for a violation of an Act of Parliament". The Act provided:

"It is not lawful for any person on the Lord's Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour."

The Court held that the legislation violated the Freedom of Religion section (2(a))of the Charter. Since then Sunday work has been lawful.

The decision relates an interesting history of Sunday Observance legislation. While in the end finding that the purpose of the Act was compulsory religious obervance the Court stated that there were two purposes of the Act, one religious "the other secular, namely providing a uniform day of rest from labour." The intertwining of the two purposes "is to be seen as far back as early Saxon times in such laws as that promulgated by Ine, King of Wessex from 688-725":

"If a theowman (slave) work on Sunday by his Lord’s command, let him be free; and let the lord pay thirty shillings as a fine. But if the theow work without his knowledge, let him suffer in his hide, or in hide-gild (money paid in lieu of corporal punishment). But if a freeman work on that day without his Lord’s command, let him forfeit his freedom, or sixty shillings; and be a priest doubly liable."

Subway Death

Death came to the workplace again on Monday morning at about 4:30 a.m. when a subway car driven by a TTC employee, came into contact with maintenance platforms. The platforms crashed into the operator’s compartment of the car killing the operator and injuring two other members of the 11 member maintenance crew.

All the crew members there are likely to experience the type of stress discussed in yesterday’s post. Indeed, Canoe reports: "One member of the TTC crew openly wept as he tried to explain to a transit safety officer what occurred in the tight confines of the tunnel." The sudden irrevocable power of death seems always to affect those who bear witness to it. In that, of course, is the stress that comes. The single largest factor in stress is lack of control. And clearly when it comes to death, all control is immediately and irrevocably removed. Thinking about the workers in that tunnel, one imagines that the work to have an overriding element of stress just in the fact that the work is in a confined space in the dark. Open, fresh air and access to rescue help are absent. Going back into that space is likely to be difficult for all the surviving workers.

As I discussed yesterday all the employees exposed to the traumatic event will be entitled to worker’s compensation benefits where they suffer symptoms of acute stress.

VT PTSD

The Virginia Tech community has undergone and is in the midst of tremendous stress. In addition to the suffering the community is already going through, the stress will continue to show up in different ways over time. One of the very real results from traumatic events such as that at VT is the inability of participants, victims, observers to get past the event and return to normal living. The shock to the system of a traumatic event causes more stress than the body is able to handle. What this means is that the body’s normal ability to deal with stressful situations is damaged. One of the most commonly recognized disorders of this type is PTSD, Post Traumatic Stress Disorder.

The term PTSD appears to have garnered most of its attention subsequent to the 1991 Gulf war. What was described as shell shock in the first world war and battle fatigue in the second wars, saw increasing numbers after the Viet Nam war and the ailment subsequently came to be recognized as legitimate gaining the tag PTSD. Subsequently it has become a common diagnosis for many people exposed to traumatic events.

The employment law question here will be which workers at and around Virginian Tech will be entitled to stress leave and or workers' compensation as a result. The first and most obvious group will be those faculty members and admin staff that were directly exposed to the shooter or any of the victims. Then other college employees who will have been traumatized even though they did not directly witness any of it, may still feel the effects of the shock because they no longer feel safe in their workplace. Finally, the police and other emergency personnel, despite encountering tragedies as a regular part of their jobs, may also experience PTSD symptoms and be entitled to worker’s compensation benefits.

The Ontario Workplace Safety and Insurance Act specifically allows for benefits to be paid in such circumstances. Section 13 of the Act states that "A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment." There is no doubt that the VT shootings were sudden and unexpected traumatic event.

The Ontario Workplace Safety and Insurance Board's policy defines traumatic events to include "being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon); being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse); being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation. The worker must have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) (e.g., speaking with the victim(s) on the radio or telephone as the traumatic event is occurring). "

Clearly, many if not all of the employees at VT felt they were in a life threatening situation. When it comes to emergence personnel who regularly encounter traumatic events, claims will be allowed where there is a cumulative effect of truama over a period of time. However, given the scale of this tragedy, it would not be unreasonable to assume that most emergency personnel, despite being familiar with minor scale trauma, would experience significant stress as a result of this situation.

Symptoms may include amongst others, flashbacks, nightmares , insomina, emotional detachment, irritability, hypervigilence, irritability, depression, anxiety, and memory loss.
Compensation benefits are wide ranging and in the first instance, even before loss of earnings is an issue, the medical costs associated with the "injury" will be covered. This would include necessary treatment and drugs. In extreme circumstances where the worker would no longer be able to function in that workplace, job retraining (labour marker re-entry) may be provided

Thus for entitlement to worker’s comp benefits, the workers will have to have an acute reaction. There is a requirement that this acute, or severe, reaction occur within four weeks of the event. There must also be a DSM IV (Diagnostics Statistics Manual for Mental Disorders) diagnosis made by a pyshciatrist or psychologist. The diagnosis may be for PTSD, or acute stress disorder, adjustment disorder, or an anxiety or depressive disorder.

Columbine Anniversary

It’s eight years ago today that the word Columbine became embedded in the collective psyche following the mass murder of 12 students and one teacher at Columbine High School by two male students. VT shooter Cho mentioned the Columbine shooters in his video recorded rant. In both shootings faculty members were killed. In both shootings there were written warnings by the shooters. However, from what I can tell, the Columbine shooters never submitted any threats or disguised threats as part of their school work. Cho did.

Many have now seen extracts from the two plays that Cho wrote. They are described by professors and classmates as disturbing. What should the professor do in such a case? In this case a lot was done. A CNN staff writer notes:

"Lucinda Roy, the former chairwoman of the English Department, told CNN that one of Cho's creative writing professors brought his writings to her attention. Roy was so disturbed by them she went to the police and counselors "and everywhere else, and they would say, but there's nothing explicit here. He's not actually saying he's going to kill someone.""The threats seemed to be underneath the surface," she said. "They were not explicit and that was the difficulty the police had." "My argument was that he seemed so disturbed that we needed to do something about this," Roy said." (http://www.cnn.com/2007/US/04/17/vatech.writings/?eref=rss_topstories)

I have had a look at Cho’s plays. While there’s no doubt that the anger and rage is apparent, both involve boys being sexually molested and wanting to kill the perpetrator. It is not the sort of thing I would find myself going to the police over were I the professor involved.

Few people remember that back in December 2000, a 15 year old boy from the Cornwall area was arrested and spent 34 days in Jail including Christmas, New Year’s and his 16th birthday because of a story that he wrote about blowing up his school. Similarly, in February 2005, an 18 year old student in Kentucky, William Poole, was arrested for writing a story about a gang of Zombies taking over his high school. Zombies!

Clearly, these are over reactions. Yet, had Cho been arrested because of the concerns of his professors, what could possibly have come of it? One can be charged with uttering threats. Would that ultimately make any difference? Would Cho have learned his lesson? I read an interesting article in Slate, on Harris and Klebold. Pyschological experts speculated that without Columbine, Klebold may have gone on to live a normal life. Harris, on the other hand was a psychopath who would have continued to commit and perfect his crimes; catching him early (and his blog revealed significant hate) would have done nothing. So what is a prof to do?

At best, the profs at VT can say they took every precaution reasonable in the circumstances. And from an occupational health and safety law perspective that is what is required of an employer. Certainly, one hates to think of the professor reading papers with a view to liability, but there is no doubt that this will cross the minds of educational administrators. This is especially true in light of the amendments to the Criminal Code of Canada which makes it a criminal offence for a supervisor to fail to take necessary steps to protect the life of a worker. If, as Lucinda Roy believed about Cho, a student was a possible danger to professors and other employees, then the supervisor would be criminally responsible if she didn't take steps to protect those workers. Warn them. Take the student out of the school. Take "reasonable steps to prevent bodily harm".

Presumably, the pyschopaths would soon learn that writing "disturbing" material would interfere with their plans and wouldn't write. Other, aspiring writers, emotionally disturbed in one way are another (and how many writers aren't?), however, would be arrested, or worse, would not even bother writing because of the threat of arrest and censorship by the state.

To take up arms against a sea of troubles

and by opposing, end them. To die: To sleep.

I have noticed the numerous blogs by VT students lamenting the fact that they weren’t allowed to carry guns on campus so they might have "defended" themselves against the gunman. This sort of sophomoric nonsense is barely worthy of comment – except insofar as it evinces a mentality that is present in the classroom whether it comes with guns or not. The initial response after 9/11 was not to allow passengers to carry guns on airplanes but rather to put in federal air marshalls. Obviously we don’t need nor want a marshall in every classroom. But more importantly, we don’t need vigilante students pumped up on testosterone and a need for self esteem and self worth to assess security needs.

But this is why debate needs be continued in the academic setting. Students need to learn debating skills. Those debating skills, by the way, are not aimed at generating a head full of hot air but rather at developing the ability to stand up for yourself and protect your rights. This is the job of teachers and professors.

In one interesting blog, http://www.smalldeadanimals.com,/ a reader, Jim Hume, notes that the VT shooter used a pistol which had to be reloaded several times. In the time that the shooter was reloading, students and professors could have attacked him. They could have thrown chairs or hot coffee, books, backpacks. They didn’t. They huddled and waited. Hume blames this inaction on the nanny state and years of "immersion in a non confrontational, liberal pansy ass societal and school environment."

I agree with the sentiment. In an experiment recently in my employment law class, I encouraged students to debate with me about answers on multiple choice questions. If I was moved by a good argument, I told them, they would get the points. A few took me up and did well. But at the end of it all, the loudest chorus was of those who had not debated but now cried that it was unfair that some students with the same answer got a mark, while they did not.

Thus conscience does make cowards of us all;
And thus the native hue of resolution
Is sicklied o'er with the pale cast of thought,
And enterprises of great pith and moment
With this regard their currents turn awry,
And lose the name of action.--Soft you now!

Imus

Should Imus have been fired for his comments that the Rutgers University Women's basketball team are a bunch of "nappy headed ho's"? As a non news event now, it is still nonetheless an issue that's worth considering. Aside from comments one might make about the racial hatred or stereotyping issue and the galvanizing power of those issues -- as seen in the Duke Lacrosse players' case -- the question to be answered here is whether Imus' conduct warrants what Justice Randall Echlin calls the capital punishment of employment law.

In Canada the governing case in just cause termination is McKinley v. BC Tel. That case held that a contextual approach is to be used in assessing workplace misconduct. While there is really nothing new in that given that courts treat each wrongful dismissal case on its own carefully considering the particular facts -- the idea that the cause must be consdidered in context is worthy of discussion. What is the context of Imus case?

Imus is a syndicated radio talk show host. He has been in the business for some thirty years. Presumably he has a large audience and the adverstising revenue generated is substantial. Advertisers are there because Imus has the ratings. I have not listened to his show, but understand that like many talk show hosts, it is his abilty to be provocative that makes him popular. He may express unpopular views, or views that aren't politically correct. He is unlikely to be interesting unless he's stepping on toes and pissing people off. That is certainly what he did when speaking about the Rutgers women's basketball team. So, in that sense, Imus was only doing exactly what he gets paid to do.

But, did he step over the line? As a professional, he surely knows that there is a line over which he cannot step. To anwer that question, an examination of what exactly was said, who else has said it, what else is being said in similar media is required. An look at the transcript of the comments shows that it wasn't Imus, but rather a producer of the show that first used the controversial word "Ho". It is of course, basketball they are talking about, the sport that pioneered trash talking. Trash talking has become a standard feature in sports. Remember Zidane's famous headbutt was incited by trash talk. Even the fans get into it -- sometimes resulting in violence between players and fans. It's a regular part of the modern sports world. Imus, as a fan, or commentator is part of that world. Moreover, he reacted to the producer's comment as is required to keep the flow of his show going -- and in the context of sports trash talk. Obviously, it's not something he put any thought into, he just responded -- in context.

Does that excuse the fact that he used the phrase "nappy headed Ho's" with both its racist and sexist overtones? Well, the answer to that also requires context. What does that phrase mean today? What is the sting of it today? What is the sting of it from Don Imus versus George Bush or Bill or Hilary Clinton or Martha Stewart? As we know, the meaning of words and phrases change over time. In one of the more amusing Canadian cases, Legere v. YWCA, the court had the opportunity to consider the evolution of the phrase "Fuck Off". While "fuck" used to be the worst of dirtiest words, today it is pretty watered down. A reading of the various blogs on the topic suggests that the phrase "nappy headed hos" is also relatively common, appearing on the street, in hip hop tunes, on videos and movies. Thus, in the context it is unlikely that the phrase has the sort of sting or shock to it, that one would say Imus was acting outside the acceptable parameters of his job and his audience.

And speaking of nappy headed, has anyone looked at Imus' hair?

Twenty Five Years

Today, April 17th. marks the 25th anniversary of the Charter of Rights and Freedoms. There is relatively little charter litigation based on employment. This is primarily because the Charter of Rights applies between the government and the people, rather than between private parties such as an employer and employee. The Supreme Court of Canada made this point back in 1986 in a case called Dolphin Delivery. That case dealt with the limitations placed on striking workers. Indeed, many of the Charter cases involving the workplace have been about strikes or picketing. In those cases the court has stated that picketing is a form of expression which is protected by the Charter.

The first case out of the court to deal with employment (and indeed one of the first Charter cases to be heard) was Skapinker v. The Law Society. In that case Mr. Skapinker was a permanent resident, but not a citizen of Canada and had therefore been precluded from being admitted to the Ontario Bar by viture of s.28 of the Law Society Act. The case raised an interesting employment question which was whether s.6(2) of the Charter created a "right to work" in Canada.

Section 6 provides:

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

After analysing the purpose of the section and canons of legislative interpretation the court held:

"I conclude, for these reasons, that para. (b) of subs. (2) of s. 6 does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence. Paragraph (b), therefore, does not avail Richardson of an independent constitutional right to work as a lawyer in the province of residence so as to override the provincial legislation."

So, in the end, Mr. Skapinker would have been denied the right to work (at least as a lawyer) in Ontario, but for the fact that by the time the case got to the Supreme Court, Skapinker had already become a citizen of Canada and had been called to the bar of Ontario. (Mr. Skapinker continues to practice family law in Toronto today.)

The first real positive case in non-union employment law was the Vriend case out of Alberta. Mr. Vriend was fired for the sole reason that he was homosexual. Alberta law, which did not protect sexual orientation, was held unconstitutional.

One interesting case involved the application by an individual to be excluded from membership in a union. The law allows for mandatory membership and mandatory union dues. The employee, Mr. Lavigne objected to his money (union dues) being used to fund such causes as anti nuclear campaigns, pro-choice campaigns and NDP party functions. The Supreme Court held, that the Freedom of Association did not include the freedom not to associate.

In Dickason v. U of A, The Supreme Court held that the mandatory retirement provisions of the provincial human rights legislation was constitutional. The same result was reached in the McKinney v. U Guelph case in Ontario.

In Weber v. Ontario Hydro, the Supreme court held that arbitrators had the power to award Charter remedies. Though a strong dissenting panel appears to have carried the court recently when leave to appeal was refused in the OPSEU (Olivo) case on the issue of arbitrators awarding tort damages.

In the world of what might be called non standard employment, the Ontario Court of Appeal held that Squeegee kids had the right to freedom of expression as well -- just not a right that could be exercised on public streets (see R v. Banks).

In R. v Big M Drug Mart, the SCC held that the Lord's Day Act was unconstitutinal thus opening the door for many more people to work on Sundays.

In Osborne v. Canada, the SCC held that lower level government employees should be allowed to participate in the political electon process, ie. work for a candidate and the prohibition against such participation in the Public Service Employees Act violates the Freedom of Expression in the Charter.

In Slaight Communications the SCC held that an order by a Canada Labour Board adjudicator requiring an employer to write a specific letter of reference did not violate the employer's freedom of expression under the Charter (saved by s.1)

In the PSAC case, a case dealing with the right of government employees to strike on the basis of freedom of assocation, the court made its oft cited comments:

"Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect."