David Mangan

Process and Outcome

While Saskatchewan Federation of Labour v Saskatchewan remains the Supreme Court of Canada’s headline decision for labour law in 2015, Mounted Police Association of Ontario v Canada (Attorney General) arguably further developed the Court’s continuing reappraisal of freedom of association. Mounted Police provided some direction as to the content of a ‘meaningful pursuit of workplace goals’. The guidance can be categorised in terms of process and outcome where the former constitutes the content of freedom of association and the latter is viewed as sitting outside of its protection.

No Longer. Not Yet. The Promise of Labour Law.

Since the latter part of the 20th century, economic duress has been a touchstone for changes in labour law. Reforms to employment tribunals in and around 2013 pose a particular challenge in access to redress as well as a significant obstacle to achieving the promise of labour law in the 21st century. This article challenges the bases for recent reforms and questions reliance on duress as their justification.

Cajole and Control: The Law of Managing Education in a Globalised World

Improvement of publicly funded education has long been part of governments’ more pressing mandates. With globalisation and recent economic issues, the pressure has intensified. This article canvasses the different legislative tactics employed in England to improve education delivery while reducing its cost. Two methods have been used in particular, control and cajole: successive governments have adopted a strategy of controlling the cost of education and cajoling teachers to improve student achievement. Similar sequences of events arising in both England and Canada are examined in order to highlight the distinct new course taken by the former in 2010. This paper presents examples of legislative management of education at a time when governments around the world are facing significant demands to reduce public expenditure while simultaneously increasing student achievement (as a way of preparing for the future).

The Legal Challenges of Social Media

Social media enables instant access to individual self-expression and the sharing of information. Social media issues are boundless, permeating distinct legal disciplines. The law has struggled to adapt and for good reason: how does the law regulate this medium over the public/private law divide? This book engages with the legal implications of social media from public and private law perspectives and outlines how the law, in various legal sub-disciplines and with varying success, has endeavoured to adapt existing tools to social media.

Regulating for responsibility: reputation and social media

The framework brought forward by the United Kingdoms Defamation Act 2013 underlines a traditional hierarchy of expression in which news media are viewed as high-level speech. Although of a different form, social media are a dominant means of expression. The current study explores the rationale for a more robust and forceful discussion of responsibility in speech on social media platforms. The underlying premise here is that speech should be viewed as a qualified good and that a more appropriate paradigm is one found in the phrase ‘freedom to participate’.

Labouring in the Public Interest

Part of the difficulty in public sector labour relations is the apparently inevitable confrontation between government and civil service unions. This idea is sketched out here with particular attention to the inherently political nature of public sector education in England and Canada. Of the many characteristics of public sector labour relations, governments’ dual role as employer and legislator remains the most distinctive. It provides an advantage which governing parties in both jurisdictions have used to their singular benefit. This power is also the source of limitations within the public sector labour relations framework. With little recourse via the law (grievances, legislation), teachers’ unions have taken their message to the public in an attempt to improve their leverage in negotiations with government. Developing in the late 20th century, public campaigns have been a favoured means for highlighting issues which fit under the broad catchphrase of protecting quality in public education. Conversely, government may also implement its own rebuttal campaign based on the need for financial restraint. As part of this contest, both sides invoke the threat of public outcry as a force which each claims it may muster, for the purpose of maximising its bargaining position. This is the framework of contemporary public sector education collective negotiations. In effect, modern day public sector education bargaining has become the means of retrenchment: government, in a centralised funding arrangement such as that in England and Ontario, allocates money and dictates the terms of employment.

But for the Exception

‘I for my part would accept that great caution is required before any development of the Fairchild exception should be allowed ... I thought this court should scrutinise the application of the exception to the facts of this case.’ These words situate Lady Justice Smith’s (unanimous) opinion in Hull v Sanderson.1 Claimants’ counsel in particular can find instruction in this case, specifically the need to be perspicacious in representation. For the Court of Appeal, the Recorder’s decision favoured statements over analysis and it is indeed unfortunate that the matter could not be remitted.2 Still, the direct criticism of the Recorder’s failure to make findings of fact suggests that claimants’ counsel would be wise to adduce the proper evidence in cases on the threshold of a modified but-for analysis.3 The facts of Hull are simple. Ms Hull was hired as a turkey feather plucker for the Christmas period. At the start of her employment, she wore gloves which the defendant gave to her. As these gloves were too big, she asked Mr Sanderson if wearing gloves was mandatory. He replied that they were not and she ceased wearing them. Soon afterwards Ms Hull developed campylobacter bacteria (which affects humans only when the bacteria are ingested, for example through touching the mouth with one’s contaminated hands). Unaware itself of this particular issue, the employer did not tell Ms Hull about the risk of harm from the bacteria. The defendants considered it unnecessary to draw Ms Hull’s attention to the risk because it was, in their mind, a matter of common sense: when handling raw meat, all should follow common hygiene rules. Compared to the facts, the issue was a greater challenge: which means of determining causation was proper— Fairchild exception or strict but-for analysis? By the time it reached the Court of Appeal, this case had become rather more complicated. At first instance, plaintiff ’s council argued causation using a strict but-for analysis. After the Recorder sent a draft of his decision in which he ruled that causation was not established, plaintiff ’s counsel contended that he had neglected to put forward the Fairchild exception as part of his original argument and had requested permission to do so after reading the draft decision. The Recorder permitted both parties to make submissions on the point4 and after considering these he reversed his decision,5 finding