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Labour & employment law column by Robert Smithson

In Emails, Tone and Context are Everything

As emails emerge as the primary mode of workplace communication, it is inevitable that their use (and abuse) will be subject to comment by a range of adjudicators. In a recent arbitration conducted pursuant to the Canada Labour Code, arbitrator Frank Borowicz weighed in on the subject.
The case before Mr. Borowicz involved a complaint of unjust dismissal pursuant to Part III of the Canada Labour Code.
Mau had been an employee of the Canadian National Railway Co., in the position of Trainmaster, between 1999 and 2007.   His employment had been terminated by his supervisor, Roberts, for “insubordination” and “lack of professionalism”.
In the course of the arbitrator’s reasons (in rejecting the employer’s just cause position) he addressed some comments Mau had made via email. The allegation was that these emailed comments had “subjectively affronted” the supervisor.

Johnny Paycheck Would Have Been Proud

In his classic 1977 cover of the country song, “Take This Job and Shove It”, Johnny Paycheck gave voice to the pent-up frustrations of employees. Perhaps no employee has ever said “I ain’t workin’ here no more” with more panache than JetBlue flight attendant, Steven Slater.
Slater’s life went from normal to wildly abnormal in the span of a few moments last week. Pushed beyond his personal breaking point, he apparently commandeered a jet’s public address system, cursed out a passenger, grabbed some beer, deployed the emergency exit slide, and slid off towards his 15 minutes of fame.
What has happened since is indicative of the instant messaging, instant video uploading, instant fame age in which we live. Slater has been all over the internet and more conventional media. 
The day after his unusual “deplaning” I saw that a television channel was asking whether Slater should have his own reality show. Talk about going, literally, from nobody to working class hero overnight. 

Why Is This Place So F#%&ed Up?

Among the possible acts of workplace insubordination, criticizing your boss to his or her superior ranks high on the list of actions sure to generate a negative reaction. But what if the criticism was solicited rather than voluntarily offered up?
Mau was an employee of the Canadian National Railway Co., in the position of Trainmaster, between 1999 and 2007. Initially, he was stationed in Sarnia, Ontario but later relocated to Kamloops, B.C.
In November of 2007, Mau began reporting to a new Assistant Superintendent of the Kamloops CN terminal, Roberts. Roberts reported, in turn, to the Superintendent of Operations of CN’s B.C. South Division.
In December of 2007, the Superintendent of Operations visited the Kamloops terminal. The events of that visit led to the termination of Mau from his employment for “insubordination” and “lack of professionalism”.

Badmouthing Your Employer (A.K.A. Talking Your Way Out Of A Job)

Employees sometimes feel an uncontrollable urge to speak frankly about their feelings for their employer. If they do this in any kind of a public forum, they may be talking their way out of a job.
Just ask General Stanley McChrystal. General McChrystal was, until recently, the commander of the American armed forces in Afghanistan.
He was, that is, until an article appeared in Rolling Stone magazine quoting his comments concerning his boss (President Obama) and the American war effort in Afghanistan. The article, by Michael Hastings, was entitled “The Runaway General”.
In the article, General McChrystal was quoted saying, among other things, that President Obama looked “uncomfortable and intimidated”
during a meeting with military officials at the Pentagon. He was also quoted as referring to one aspect of the Afghanistan military operation as a “bleeding ulcer”.

Can Workplace Bullying Be Cured With Legislation?

Ontario has introduced its Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace). This legislation will impose broad obligations on employers in that province with respect to workplace violence and harassment.
In brief, this legislation provides definitions for workplace “violence” and “harassment” and requires employers to implement related policies and programs and training, to conduct ongoing workplace assessments of the risk of violence, and to disclose information to workers about persons with a history of violent behaviour.
This legislation is in addition to Ontario’s regime of workplace regulation, including existing employment standards and human rights and occupational health and safety laws. The question many Ontario employers may be asking is, “Is more workplace regulation really necessary?”
On the one hand, statistics suggest that workplace bullying is prevalent. The Globe & Mail reported, recently, on studies showing that 80% of workers report “at least one incident of harassment in the course of their career”.

Court Singles Out Union Instigators

The fact that there may be misconduct on union picket lines during a labour dispute should not surprise anybody. What may be surprising is that certain individuals may be present for the express purpose of inflaming the situation.
A recent example of a labour dispute which ended up in front of the B.C. Supreme Court demonstrates the extent to which these union tactics cross the boundary between the acceptable and the downright offensive.
The members of the Canadian Office & Professional Employees Union (COPE), Local 378, were on strike against their employer, Hertz Canada Limited. The striking employees were employed at Vancouver International Airport and at a service centre in nearby Richmond and were picketing at both locations.
As a result of the conduct of certain individuals present on the picket line, Hertz ended up applying to the B.C. Supreme Court for an injunction restraining the union’s activities.

You're Fired - But Don't Leave!

One of the stranger aspects of the law of wrongful dismissal is the extent to which the duty to mitigate may compel a fired employee to return to work for the firing employer. Notwithstanding that this may be an uncomfortable arrangement for the terminated employee, it seems that the courts (in B.C. at least) are embracing this concept.
An employee suing a former employer for damages for wrongful dismissal has a legal obligation to mitigate his or her losses. The employee can satisfy this duty by making reasonable efforts to find other employment (or to otherwise generate earnings to replace the lost wages).
This duty to mitigate arises out of the law of contract - flowing from that body of law is the premise that the innocent victim of a contractual breach must take steps to reduce his losses. In the employment context, this means the terminated employee must make attempts to obtain new employment.
So, individuals claiming damages for wrongful dismissal must make reasonably diligent efforts to find new employment. If they do not do so, this failure to mitigate will negatively impact their entitlement to pay in lieu of notice. 

Where Are Today's Red Adairs?

As I watch the slow progress towards capping BP’s ruptured oil well in the Gulf of Mexico, I am reminded of the near-mythical oil patch hero, “Red” Adair. As gallon after gallon of oil gushes into the Gulf, I wonder where people with his brand of courage and skill have gone.
Paul “Red” Adair was a Texan who was well acquainted with explosive situations, having served in a bomb disposal unit in World War II. After the war, he went to work for one of the pioneers of oil well fire and blowout control.
In the late 1950s, Adair formed his own company to fight oil well fires and well blowouts. He broke new ground with his “wild well control” techniques and firefighting equipment.
In 1962, Adair and his company extinguished a blaze nicknamed “the Devil’s Cigarette Lighter” at a gas field in the Sahara. It has been described as a 450 foot pillar of fire and apparently it was visible to astronauts orbiting the earth. It was nothing, however, that a tough-as-nails Texan and 500 tons of explosives couldn’t handle.

Is The Battle Against War-Zone Sex Unwinnable?

Some employers actively discourage intimate relationships between employees. No employer seems to take this approach as far as the military.
A Canadian Press story this week spoke of the Canadian military’s “blanket ban on soldiers engaging in intimate relationships in a war zone”. The story quoted some experts calling this rule an “unwinnable fight against human nature”.
This discussion comes on the heels of the dismissal of Brigadier General Daniel Menard from duties in Afghanistan. Menard is alleged to have engaged in an “inappropriate relationship” with a female soldier.
Clinical sex therapist Sue McGarvie said that soldiers “are in an incredibly difficult situation and looking for comfort and we are expecting them to be automatons”. She went on to state, “You cannot fight it: You put adults together in any situation and you’re going to have sex and intimacy”.

What's So Personal About Employees' Whereabouts?

The advent of personal information legislation across Canada has provided employees with a mechanism to challenge their employer’s monitoring of their activities. In at least one context, however, employers’ use of monitoring technology has been upheld.
Employers operating fleets of vehicles surely appreciated the development of global positioning systems (GPS) and mobile data terminals (MDTs). The effective use of such monitoring systems has allowed employers to hone the efficiency of their mobile fleets. 
They also, of course, have allowed close monitoring of the drivers’ whereabouts and (no surprise here) employees have sought ways to push back against that form of electronic surveillance.
A decision released by the Office of the Privacy Commissioner of Canada has addressed a complaint by a driver of a municipal transportation service available to mobility-reduced citizens.


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