Sorry I haven’t updated for a while, but here is a blog post I wrote for my non-profit swing dance organization, Toronto Lindy Hop: a 2013 Year in Review.
Can a unionized employer – a municipal government, say – fire a worker for sleeping on the job?
Public Displays of Exhaustion
As you probably already know if you live in Toronto, a few weeks ago a city employee was found head down on desk, office door wide open, fast asleep.
The reason you already know this is that a city councillor, Georgio Mammoliti, decided that it would be a good idea to send a photograph of the sleeping worker directly to the press. This is not, I hasten to add, what my field refers to as a human resources solution.
I can’t give advice the City of Toronto on any particular case, of course, and in this particular case, there are far too many unknowns to even try. But surely I can say that a worker in any industry who is photographed sleeping on the job deserves to be fired, right?
Well . . . maybe not.
Judging by the volume of case law on the subject, sleeping on the job happens surprisingly often in Canadian workplaces. Indeed, there are so many cases that an exhaustive survey would be impossible, even though I am limiting my review to labour arbitration cases from unionized workplaces rather than drifting off into the non-union world. For the purposes of this post, however, I’ll just run through a few decisions, to make sure your eyes aren’t closed to the legal principles involved.
First, the case law draws an important distinction between deliberate and accidental sleeping. No, I am not making that up. Take it from the respected labour arbitrator William Marcotte in the 2006 decision of Lecours Lumber Co.:
As can be seen from the above cases, an important consideration for purposes of determining the appropriateness of disciplinary discharge is whether or not the employee deliberately intended to sleep on the job. Where there is found to be such intention, “arbitrators tend to regard situations where employees are found to be deliberately sleeping as justifying discharge.” . . . Certain circumstances surrounding an incident of sleeping on the job have led arbitrators to find that the act was premeditated.
That’s right. Sleeping on the job won’t necessarily get you fired, but my new favourite phrase – “premeditated sleeping” – probably will.
What are the circumstances that will give rise to a finding of “premeditated sleeping”? Arbitrator Grey’s 1999 decision in Stelco gives a particularly vivid description:
When Mr. MacDonald arrived at CO13 at about 4:30 a.m., much of the area was in darkness. Messrs. Gilkinson and Kennedy were in a workshop next to the lunchroom. The lights in the workshop were turned off. Mr. Gilkinson was lying prone on an inflated air mattress positioned on top of a picnic table, asleep. His boots were off. His head was on the pillow portion of the mattress. Mr. Kennedy was also asleep, lying prone on a chaise lounge liner laid out on top of a workbench. His boots were off. His head was on a pillow of rags. Mr. Earle was in the lunch room adjoining the workshop where Messrs. Gilkinson and Kennedy were sleeping. He was asleep, lying prone directly on a picnic bench. He was wearing his boots. The lights in the lunchroom room were off.
There was an alarm clock in that room set for 5:50 a.m. (Those who relieve night shift electricians would arrive between 6:15 a.m. and 6:30 a.m.) Mr. Van Mol was in an office down the hall from the area where the others were sleeping, the office where the drive files and computer terminal were located. He was asleep, lying or reclining on top of a desk, covered with a winter coat. His boots were off. The office lights were turned off. The office door was locked. Mr. MacDonald found him there when he used his key to enter the office to consult the drive files and use the computer terminal.
Ironically, the fact that our City of Toronto worker was photographed, head down on desk, makes it less likely that he or she can be fired for it. If this had been a case of premeditated sleeping, the worker probably would have found a more comfortable position, or at least closed the door.
Accidentally in Slumber
Of course, employers are still entitled to sound an alarm when an employee is sleeping on the job accidentally. That is especially true when the employee’s job requires alertness for safety reasons, such as a crisis counsellor at a women’s shelter in one 1996 case, or another 1996 case in which the job title of the sleeping employee was – again, I am not making this up – Awake Night Staff. Arbitrators agree that workers who are found sleeping on the job deserve discipline. The question is whether they deserve to be fired.
The answer to that question will depend on a number of different factors. These include the employee’s seniority, past disciplinary record, explanation for sleeping (an employee who is taking medication that causes drowsiness might be treated very differently than an employee who simply stayed out too late at the bar the night before), whether the employee acknowledged wrongdoing and showed remorse, and whether the employee’s behaviour actually resulted in harm to the employer’s operations or reputation.
Thus, termination was upheld for the crisis counsellor at the women’s shelter, in light of the risks if he could not be trusted to remain alert. Termination was also upheld where an employee with two previous suspensions displayed a “lack of candour” and a “failure to acknowledge fault.” On the other hand, an arbitrator overturned a termination of employment for an employee with a clear disciplinary record who had taken active steps after the incident to make it less likely to be repeated. Another employee got to save his job since the sleeping incident was related to his diabetes and he clearly showed remorse.
Perchance to Dream
The fact is, we just don’t know any of these things about the city worker who has Councillor Mammoliti and Mayor Ford so wired up. That’s why it’s not appropriate for us to lie back and guess at whether this particular worker deserves to be fired – and why it’s not appropriate for city councillors to leak photographs of their own employees to the media before going through the internal investigation that would actually be required to put this issue to bed.
When it comes to the worker’s supervisor, chances are that he or she is not unionized, so the city could fire that person whenever it wanted. But the city would have to provide reasonable notice or pay in lieu, which, depending on the supervisor’s years of service, could add up to quite a large sum.
And if the Mayor believes that he can fire a supervisor for cause, and avoid paying him anything, just because one subordinate, on one occasion, was (literally) caught napping?
All I can say is, dream on.
I’m finally bringing this blog back to labour law, with the news that last Thursday, the Supreme Court of Canada granted leave to appeal a decision raising an interesting and timely question: does the Canadian Constitution protect the right to strike?
Background: The Labour Trilogy, B.C. Health Services and Fraser
The Supreme Court decided three cases on the issue back in 1987, which came to be known as the Labour Trilogy. The question in those cases was whether the guarantee of freedom of association in the Charter of Rights and Freedoms (Charter) included a constitutional right to collective bargaining and to strike. The answer was no, and that answer stood for 20 years.
Then, in 2007, the Supreme Court decided B.C. Health Services. In that case, the province of British Columbia introduced legislation that cancelled important terms of collective agreements in the health care sector, and said that no similar terms could be included in health care collective agreements in the future. In response, the Supreme Court overturned its own previous decisions in the Labour Trilogy and said that the Charter does protect collective bargaining. The Court explained that there’s not much use in having freedom of association, if the government can just pass a law which makes the very purpose of your association pointless. That was what the B.C. government did when it unilaterally cancelled important collective agreement terms. What was the point, then, of health care workers forming an association (a union) to bargain collectively?
What B.C. Health Services did not address was the right to strike. The Court deliberately refused to discuss that question.
Following B.C. Health Services, unions began a number of constitutional challenges to labour laws that they alleged interfered with the right to collective bargaining. The Supreme Court decided to weigh in again in Ontario v. Fraser, a 2011 decision about agricultural workers in Ontario, who are not covered by the Labour Relations Act. They have a separate legal regime which allows them to form associations and have those associations address their employers; the employers have an obligation to listen and respond. But there is no formal duty of collective bargaining, there is no duty to recognize the union as the exclusive representative of the workers, and other protections that most Ontario workers get are absent.
Fraser did not exactly change the law in B.C. Health Services — in fact, the Court was very careful to say that it was applying the principles from that earlier case — but it did clarify B.C. Health Services in a way that looked quite a lot like a retreat. Fraser stressed that from a constitutional point of view, the right to collective bargaining is a derivative right: one that derives from the freedom of association. Therefore, you don’t necessarily get constitutional protection just because the government has interfered with collective bargaining. You only get constitutional protection if the government’s actions (or inaction) make meaningful association effectively impossible. For agricultural workers, since they can form associations and the employers must listen to what the associations say and respond in good faith, workers are able to form meaningful associations. That is good enough under the Charter. Again, however, the Supreme Court did not talk about the right to strike.
Saskatchewan Federation of Labour and the Right to Strike
In 2008, the government of the province of Saskatchewan passed the Public Sector Essential Services Act. It requires employers and unions in the public sector to agree on which of their services are essential, and which employees are required to maintain those services. Any employees who are required to provide essential services will have to continue working during a strike. However, if the employer and the union cannot agree, then the employer is allowed to just impose whatever essential services requirements it wishes. The union can challenge the number of employees who the employer says it needs for essential service, but it cannot challenge whether particular services or particular job classifications are essential.
The Saskatchewan Federation of Labour, along with several public sector trade unions and unionized employees, brought a constitutional challenge alleging that the Essential Services Act violated workers’ freedom of association by denying them the right to strike (along with a number of other challenges). The Saskatchewan Court of Queen’s Bench agreed, based on the principles in B.C. Health Services and Fraser. It found that strikes are integral parts of collective bargaining, so if the Charter protects collective bargaining, it must protect strikes as well.
That decision was overturned by the Saskatchewan Court of Appeal, on a fairly technical but still important ground. The old Labour Trilogy, the Court of Appeal said, found that the Charter does not protect the right to strike. B.C. Health Services and Fraser overturned the Labour Trilogy when it came to collective bargaining, but refused to discuss the right to strike. Therefore, when it comes to the right to strike, the Labour Trilogy is still a binding precedent from the Supreme Court of Canada. It was simply not open to the Saskatchewan courts to refuse to follow it. In the words of the Court of Appeal:
In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself. This is what the doctrine of stare decisis [i.e., the rule of precedent] demands. It follows that the Essential Services Act cannot be struck down on the basis that it limits strike activity contrary to s. 2(d) of the Charter.
After that, how could the Supreme Court say no?
A New Labour Trilogy?
The Supreme Court’s decision last week to grant leave to appeal in Saskatchewan Federation of Labour follows on the heels of granting leave for two other labour law cases, both involving the Royal Canadian Mounted Police. They have never been permitted to unionize, but they have various systems where worker representatives get to participate in committees and councils which help determine their pay. The Ontario Court of Appeal and the Federal Court of Appeal each made recent decisions which denied the Mounties constitutional protection for these types of bargaining activities.
In fact, the Ontario Court of Appeal also found for the employers in two other labour law freedom of association cases in 2012. In those cases, the Supreme Court refused to grant leave to appeal. Our firm actually represented the employer in one of those cases, and I was heavily involved in preparing the arguments. It was an extremely interesting case, and very rewarding (and relieving) that we were successful. When the Supreme Court denied our opponents leave to appeal, we got the impression that the Court, having decided similar issues in 2007 and again in 2011, just didn’t see the need to revisit them so soon.
But now the two Mountie cases and the Saskatchewan Federation of Labour case will be heard by the Supreme Court of Canada in 2014. The Mountie cases are scheduled to be heard in February. It’s unlikely that Saskatchewan Federation of Labour will be ready quite that soon, but I wouldn’t be surprised if the Supreme Court waits until it can release all three decisions together as a new Labour Trilogy. Hopefully, it will be one that clarifies the law for a while, and avoids the volume of litigation on these issues that we’ve seen since B.C. Health Services and Fraser were decided.
Lawyers often say that law touches every area of life, but employment is an area of life that touches many different types of law. It’s one of the things that I find so fascinating about my work: a policy can be perfectly acceptable under labour law, but what about human rights? Health and safety? Privacy? Because of how important the workplace is to our daily lives, it’s a place where different regimes stack and layer on top of one another.
Metron Construction adds another legal regime to the mix, one that I don’t normally see in my day-to-day work: criminal law.
Many Torontonians still remember watching news stories about the Metron Construction tragedy in 2009. Six construction workers were working at the fourteenth storey of a high-rise construction site, when the swing stage they were standing on collapsed. Only one man was wearing fall protection and escaped unharmed. Of the other five workers, four plunged to their deaths; the fifth miraculously survived the fall, suffering serious injuries.
As if it were even possible, the story gets worse.
There should never have been six people on the swing stage. It was designed to hold only two people at a time. That may be why there were only two fall-arrest harnesses between the six workers, instead of one per person as there should have been, which could have saved their lives. All of the workers were recent immigrants to Canada from Eastern Europe or Central Asia.
Oh, and it happened on Christmas Eve.
It was an event that shook people’s faith. Torontonians see their city, and Canadians see their country, as places where this sort of thing should not be allowed to happen. They’re right.
On the legal side, it was time to bring in the big guns.
To understand what makes this case different from most cases involving workplace injuries, we have to look at the normal regime that governs workplace safety.
The Occupational Health and Safety Act (OHSA) in Ontario, and its equivalents in the other provinces, impose a number of duties on employers, general contractors, supervisors, workers and others to ensure that work is done safely. The duties range from the very specific (a guardrail must be between 91 and 107 centimetres, or 36 to 42 inches, above the floor) to the very general (employers must take all precautions reasonable in the circumstances to protect workers). A breach of these duties can lead to charges being laid.
We call these “quasi-criminal” charges, because they come from (in this case) safety regulations rather than the Criminal Code, but the process is fairly similar to the criminal one. Charges are laid, disclosure is given, the accused pleads guilty or not guilty, the prosecution has to prove its case beyond a reasonable doubt, and if the defendant is found guilty, the judge imposes a sentence.
A few years before the Metron event, however, the Criminal Code was amended to make it easier to prosecute companies for criminal offences having to do with worker safety. That was what made the Metron case different. The two regimes, OHSA and criminal, were applied at once.
So while the president of the company was pleading guilty to four OHSA charges (as part of a plea bargain that saw criminal charges withdrawn and allowed him to avoid jail time), the company itself was pleading guilty under the Criminal Code, to criminal negligence causing death. There was no plea bargain with the company, so the prosecution and the defence argued over the sentence in front of a sentencing judge.
As the judge, how do you decide what a fine should be in a case like this? Since the new Criminal Code provisions had rarely been applied before, there were few places for the judge to turn for guidance. The judge ended up relying on the fines that were imposed in similar cases under the OHSA, and also considering a number of other factors, including the company’s ability to pay.
The result? A fine of $200,000. Some public outrage. And an appeal by the prosecution to the Ontario Court of Appeal.
The Metron Construction Decision: Not in Kansas Anymore
The Court of Appeal released its decision in R. v. Metron Construction Corporation on September 4, 2013. The message: just because it’s a workplace safety incident doesn’t mean that we should use OHSA sentences. Criminal negligence is one of the most serious offences in the Criminal Code, and a sentence has to reflect that fact.
For one thing, if similar OHSA offences attracted fines between $115,000 and $425,000, then a criminal fine ought to be even higher. At the very least, it shouldn’t be toward the bottom of the range, like the original $200,000 fine was.
For another, once the Criminal Code is involved, you don’t need to worry as much about whether your fine is going to bankrupt the company. Those kinds of thoughts may make a lot of sense when you’re trying to enforce safety regulations – it kind of defeats the purpose if you bankrupt the company you were trying to regulate. But the Criminal Code is different. It’s not about regulation, it’s about public standards of behaviour. The purposes of a sentence include denouncing criminal activity and deterring other companies from doing the same. The company’s ability to pay should be taken into account, but it is far from the be-all and end-all.
In short, when you’re a corporation charged with a serious criminal offence, you should expect to face serious criminal sentencing. In the words of the Court, “The respondent was convicted of a very serious offence. It is a different and more serious offence than those found under the OHSA.” We are not, so to speak, in Kansas anymore.
The Bottom Line
The company’s fine was increased from $200,000 to $750,000, and a statement was arguably made: companies had better be diligent about worker safety, because if they’re not, they have more than just the OHSA to worry about.
Some may argue that the fine was still not high enough. I’m not so sure. It certainly seems to me that the new fine was more appropriate than the old one, but $750,000 for a relatively small company strikes me as sufficient to drive home to other corporations that worker safety is important. Sadly, with an after-the-fact punishment, encouraging other companies to pay attention to safety is the best that we can really hope for.
And while many will say that the company president ought to have served jail time, the fact is that the supervisor whose negligence was most to blame for the tragedy has already served a much harsher sentence. He was one of the four who died on the swing stage.
Which just drives home what, for me, is the real point. For all of our talk about denunciation and deterrence, the facts on the ground make the entire sentencing analysis ring a bit hollow. Four people are dead, and no matter what fine we impose, it is not going to bring them back. The vast majority of the companies that I work for take pride in their health and safety programs, and would find the incident appalling, and that is what matters. It is the four deaths in and of themselves that ought to make us pay closer attention to workplace safety, not the fine that attaches to them.