Thursday, 11 July 2013

Cutting Costs, Ignoring Safety

The horrors of the Bangladesh building collapse in May, which cost numerous garment workers their lives, brought international attention to the sorry state of workplace safety amongst Bangladesh workers. The heightened attention to these concerns led to the development of the Accord on Fire and Building Safety, which was developed and signed by global unions and 70 major fashion companies.

Seventeen retailers, the largest of which is Walmart, distinguished themselves by refusing to sign the Accord. These 17 companies use labour from the Bangladesh garment industry to produce items sold in their stores, enjoying a fat profit margin in the process.

This alone might lead one to expect they would care for the workers enough to sign on to the Accord. Yet instead of signing the Accord, Walmart and the other retailers chose to propose their own plan to improve workplace safety[1]. The plan was revealed yesterday and is a tremendous, if unsurprising, disappointment.

The Accord is a major step forward for the safety of Bangladeshi workers. Unions have a large part in governing the Accord and worker representation is recognized as being vital to the success of the Accord and the improvement of workplace safety conditions. The plan proposed by Walmart and the other retailers, on the other hand, was developed without any real input from unions and does not involve any meaningful participation of representatives of the workers. It is a plan unilaterally developed by business interests without due regard for unions or workers[2].

Scott Nova, executive Director of the Worker Rights Consortium, is equally unenthused with the plan:

Walmart, Gap and the corporations that have chosen to join them, are unwilling to commit to a program under which they actually have to keep the promises they make to workers and accept financial responsibility for ensuring that their factories are made safe[3].

The Accord gives workers the right to refuse dangerous work or to enter dangerous buildings. This right alone could have averted the disastrous building collapse in May, sparing countless lives. Despite the obvious benefit of this provision of the Accord, the retailers’ plan says nothing of the rights of workers to refuse such dangerous situations.

Another benefit of the Accord is transparency. The Accord requires that factory inspection reports be made available to representatives of workers. It also requires workers’ representatives to be immediately notified of any imminent threats to worker safety. The retailers’ plan rejects such transparency, preferring an opaque approach. Under this plan, factory inspection reports will be made available to workers’ representatives only where there are plans to remediate[4]. If there are no plans to remediate a situation, workers may never know of a danger until it is too late. The retailer’s initiative represents another in a long line of choices by Walmart that demonstrate a stony disregard for the safety of workers.

If Walmart wants to prove it is committed to workplace safety it will admit the flaws in its own plan and sign the Accord instead. But the company has a track record of putting profits before people. UNI Global Union Deputy General Secretary, Christy Hoffman puts it this way:

Walmart are bringing their discount practices to factory safety. This is not a price war; this is about people’s lives. Walmart has dragged Gap and a number of other brands down the wrong track. We now urge the Walmart/Gap initiative to think again and raise its standard to those of the Accord out of respect for Bangladesh and the Bangladeshi garment workers.[5]

Walmart and the other retailers have an opportunity to show their customers and the world that they are more than parasitic institutions feeding off the labours of poor Bangladeshi workers. They can show the world they care about workers and workplace safety.  It is time for these companies to realize that the world has changed and will no longer sit passively by while workers’ lives are put at risk in the name of profit. President Obama even recently removed some Bangladesh trade privileges with the U.S. in protest of the unsafe working conditions[6].

The world is listening now and it's time for these companies to see that safety is the new fashion. It is in their own self-interest to change with the times, before the world leaves them behind.

Tuesday, 9 July 2013

Workplace Injury and your Facebook Page

Quebec is a province known for its strong privacy laws. So when the question arose as to whether an employer is able to use the facebook page of an employee as a means to handle the employment relationship, many would have expected the answer out of Quebec to be an unequivocal “no”. This, however, was not the answer.

In ND et Commission Scolaire A,[1] the Commission des l├ęsions professionnelles, on appeal from the Quebec Worker’s Compensation Board, recently ruled that the Commission is allowed to use information it gets from the facebook account of an employee when dealing with the employment relationship.

In ND a worker was diagnosed with an adjustment disorder roughly six months after she had injured her shoulder at work. The worker was a teacher and was represented by the Federation of School Support Staff (FPSS), which is affiliated with the Confederation of Trade Unions Quebec (CSQ). She wanted the Commission to determine that the injured shoulder and the adjustment disorder were related problems. The worker also sought to have postings from her facebook account excluded as evidence.She had been active on Facebook during her absence from work, “often mentioning her mood and her dissatisfaction with the way her compensation file was being handled by the commission in her posts.”[2]

Information from a grievor’s facebook account is inadmissible if obtained via fraud, subterfuge or other indirect methods. The worker’s facebook account was set to “private”, meaning that only her “friends” had access to her account. Neither the worker nor the Commission could say for certain how extracts from her facebook account came to be in the Commission’s file[3].

Given the startling fact that no one seemed to know how the contents of her account ended up in the Commission’s file, a representative of the worker argued that the information from her facebook account, in the absence of evidence to the contrary, must be presumed to have been obtained through fraud or other impugned methods. For this reason, it was argued, the evidence must be excluded under Article 2858 of the Civil Code of Quebec (CCQ), which holds that evidence can be rejected where it is obtained under conditions that violate human rights and fundamental freedoms and where its use is likely to bring the administration of justice into disrepute.[4]

The Commission, however, rejected this argument, ruling that in the absence of evidence that the extracts from the worker’s facebook page were obtained by fraud or otherwise, it could not conclude that the extracts were inadmissible. The importance of this evidence to the deliberation of the Commission was deemed more important than any question as to the source of the evidence.

The Commission relied on the basic evidentiary principle that evidence is generally admissible if it is relevant to the case and will aid in helping the adjudicator to get to the truth.  Since part of the worker’s injuries were said to be psychological in nature, and since statements made on the worker’s facebook page were likely to demonstrate the worker’s state of mind, the Commission deemed the facebook entries relevant to the worker’s claim of psychological injury, and thus ruled them admissible[5].

What the Commission Overlooked

Unfortunately, the Commission in this case took an oversimplified view of the complexities raised by social media in the litigation context. The Commission, for instance, paid no mind to the issue of whether or not the facebook postings could be authenticated. If the Commission was willing to accept there was no fraud in obtaining the evidence, would it also be willing to accept that there was fraud that went into the creation of evidence? This does not appear to have been raised as an issue in the case, but it is a valid concern. The Commission’s considerations in coming to its ultimate decision seem entirely one-sided. The Commission gives great weight to evidence without determining its source, while simultaneously giving almost no weight to the privacy interests of the grievor.

The Commission failed to place an appropriate premium on privacy rights, easily subordinating them to the Commission’s interest in having all relevant evidence before it when making a determination. This does not seem in keeping with precedent set by the Supreme Court in R. v. O’Connor, which has recognized that just because a person is involved in litigation, it does not mean that he or she must sacrifice their rights to privacy:


I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation[6].


Granting the appellant employer such licence to delve into the private aspects of the grievor’s life, the Commission relied on another decision which found that a facebook account, even when the security settings are set to “private”, is not truly private for the purposes of litigation[7]. The Commission focused, in part, on the fact that the grievor in this case admitted to having 350 “friends” and the fact that it was conceivable that the “friends” of these 350 people could in turn see postings on the grievor’s account. Given that not only the grievor’s friends, but the friends of these friends and the friends of those friends and so on, might be able to view the grievor’s facebook profile, the Commission concluded that the grievor had no real expectation of privacy.

Followed through to its logical conclusion, this ruling would suggest that anyone with a facebook account has essentially zero expectation of privacy, unless the grievor’s facebook account was accessed via fraud. It completely rejects a person’s right to privacy without sufficiently considering whether the facebook account needed to be probed “for the proper disposition of the litigation”.

In making this decision, the Commission brought Quebec closely in line with other provinces, where privacy interests have long been trampled in the interests of all relevant evidence being before a court or tribunal. The trouble is not with this decision per se, but with a judiciary that seems to be sacrificing the privacy rights of individuals on the altar of litigation.

The issue is a thorny one, as each party involved in litigation is entitled to have all relevant evidence considered. Courts and tribunals are struggling with the relative newness of the phenomena of social media. In this case, the Commission did not draw the line in an appropriate place. It would have done better to authenticate the evidence and delve more deeply into whether there was sufficient probative value before stepping over the grievor’s privacy rights. Future decisions would do well to place more focus on such considerations. It would be refreshing to see more thought given to whether the information being introduced is of sufficient probative value to be deemed truly relevant to a case and thus worthy of the violation of the grievor’s rights.

[1] 2013 QCCLP 2138 (ND).
[3] ND at para 61.
[4] ND at para 66.
[5] ND at para 79.
[6] R. v. O’Connor, [1995] 4 SCR 411, at para 38. (O’Connor).
[7] Landry and Provigo Quebec Inc (Max and Cie) 2011 QCCLP 1802 (CanLII). Cited in ND at para 77.