[1980] OLRB Rep. July 933
2124-79-OH Albert Gedraitis, Complainant, v. Adelaide Building Services, Respondent
BEFORE: G. Gail Brent, Vice-Chairman, and Board Members E. J. Brady and S. H. Lewis.
APPEARANCES: H. Kopyto for the complainant; R. C. Filion, D. Hogg, R. Davis and B. Smeenk for the respondent.
DECISION OF THE BOARD; July 23, 1980
The name of the respondent is amended to read: "Adelaide Building Services
The complainant has complained that he has been dealt with by the respondent contrary to the provisions of section 24(1) of The Occupational Health and Safety A Ct, 1978 (hereinafter referred to as "the Act"), and requests that the appropriate relief be given by the Board.
The complaint does not allege that the complainant was discharged because of any refusal to work where his health or safety was in danger. The operative part of the complaint is set out below:
"On or about January 5, 1980 the grievor was dealt with by Roy Vasconcelos and Rick Davis of the respondent contrary to the provisions of section 24(1) of The Occupational Health and Safety Act, 1978 in that he did on his own behalf or on behalf of the respondent dismiss the complainant and grievor from his employment as check-up man because he:
in December 1979 reported to his supervisor, among other things, the fact that the electrical cables on the vacuum machines had not been replaced for a two month period and were in a state of disrepair to such an extent that they constituted a hazard.
On Wednesday, January 2, 1980. the complainant further informed two supervisors of the respondent company concerning the situation mentioned in the above paragraph.
Further, the complainant states that on the 3rd day of January, 1980, he made a notation in the hydro log book for his fellow employees that he was preparing a comprehensive study and recommendations under The Occupational Health and Safety Act for submission to his employer respondent.
The complainant alleges that his dismissal from the respondent company constituted wrongful discipline. The complainant alleges that his dismissal resulted from his actions in compliance with The Occupational
Health and Safety Act, 1978, and his attempts to have the act enforced."
At the commencement of the hearing, counsel for the respondent argued that the complaint did riot on its face disclose a violation of section 24(1) of the Act. Counsel pointed out that there was no allegation that an order had been refused for health or safety reasons, or that the complainant sought enforcement of the Act or its regulations. After hearing the submissions of both counsel on this point, the Board reserved determination of this matter, and, with the consent of counsel, proceeded to hear the evidence.
Section 24(1) of The Act reads as follows: "No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act of the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.”
That provision does not, on its face, limit its protection or application to situations where a worker has refused to perform work. The Act itself speaks to matters other than refusal, and, among other things, imposes a variety of obligations upon constructors, employers, supervisors, workers, owners and suppliers (see Part Ill of the Act). A worker who is trying to comply with the provisions of this Act by fulfilling his obligations under section 17, or who is trying to seek enforcement of this Act by getting his employer or supervisor to fulfill the obligations set out in sections 14. 15 and 16 of the Act, is no less entitled to the protection of section 24(1) than is the person who refuses to perform work. Therefore, the Board finds that the complaint on its face does allege matters which may constitute a violation of section 24(1), insofar as they are capable of being included in sections 14, 15, 16 and 17, and that it has jurisdiction to hear the matter.
The complainant was first employed by the respondent in May 1978. He worked for the respondent in various locations, including the IBM building and Hydro Place, until he resigned sometime in July 1979 to go to San Francisco. In August 1979 he was re-employed by the respondent and sent to work at Hydro Place as a check-up man. He was employed there in that capacity until his discharge in January, 1980. The respondent is in the business of providing cleaning services on a contract basis. At all material times, it was under contract to provide cleaning services to Canada Square, the owner of the building commonly known as Hydro Place, whose primary tenant at that location is Ontario Hydro.
In December 1978, while employed by the respondent as a cleaner in the IBM building, the complainant wrote a rather long (four legal-sized sheets) letter to Mr. Havarty, who was at all material times the building services co-ordinator at IBM. The latter turned the letter over to Mr. Rick Davis, the respondent's quality control officer. The contents of the letter are not material, except to the extent that it contains criticisms and complaints made against the respondent by one of its employees directly to one of the respondent's clients. It is reasonable to conclude that the respondent would, at the very least, be embarrassed by such a communication. Mr. Davis testified that, when he was given the letter, he saw the complainant and told him that he should be "fired on the spot" for what he had done. Mr. Davis said that rather than discharge the complainant, he decided to work with him that night and ensure that the complainant was properly trained to handle the job. He also testified that he made it clear to the complainant that if he wrote anything like that letter to a customer again, he would be fired. Mr. Davis explained that the cleaning business is very competitive, and customers change cleaners very frequently; because of this, the respondent is very sensitive to anything which could diminish it in the eyes of one of its clients. He also explained that the respondent has difficulty recruiting personnel with an adequate working knowledge of English, and that the complainant was valuable to and valued by the respondent because of his facility with the language.
The complainant confirmed that Mr. Davis made it clear to him that writing the letter to the client was a very serious matter. He acknowledged that it was made clear to him that such communications embarrassed the respondent, and that he was not to communicate with any of the clients again in such a manner. The only significant difference between the complainant and Mr. Davis was the former's denial that he had been threatened with dismissal if anything like that recurred. There can be no doubt, though, that the complainant was made aware of the seriousness with which the respondent viewed his actions, and it seems only reasonable to accept that he could conclude that the respondent's attitude toward any subsequent action of that sort would be equally censorious, at the very least.
In July 1979 Mr. Davis wrote a letter of recommendation for the complainant. That letter, addressed "To Whom It May Concern" describes the complainant as a "dedicated and conscientious employee" and gives him "our highest recommendation". At the time the letter was written neither Mr. Davis nor the complainant contemplated that the complainant would be returning to Toronto again. The complainant did return and was hired by the respondent in August 1979. Mr. Davis admitted that he might have been too exuberant in his praise of the complainant, but it seems clear that the complainant performed his work in a satisfactory manner, and the only real cause of complaint the respondent had was his letter to its client. The fact that the complainant was re-hired in August 1979 essentially confirms it.
Mr. Davis testified that there are approximately 48 people employed by the respondent at 1-lydro Place. There is supervision on the site, and there is also a travelling supervisor, Mr. John Pimpao, who has authority over several buildings, including Hydro Place. The complainant was sent to Hydro Place as a check-up man in August 1979 and held that position continuously until his discharge. Essentially, his job was to follow the cleaning crew into an area and see that everything was done properly. If things were not done properly, he was to do them himself or report it to the foreman. Part of his job was to ensure that any poorly-done cleaning jobs brought to the respondent's attention as a result of periodic inspection tours were attended to.
Mr. Davis said that sometime in September 1979, he began getting complaints from Mr. Pimpao about the complainant's performance. He said that these complaints were received regularly and were recurring, and that he told Mr. Pimpao to try to handle the situation. By December 1979 Mr. Pimpao apparently was calling Mr. Davis at home with complaints about the complainant's work performance. Sometime in December (Mr. Davis believed it was Monday, December 17, 1979), the complainant arrived at the respondent's office at 11:00 a.m. to see Mr. Davis. Mr. Davis said that, at the time, he believed that the complainant had come on his own initiative, but was later informed that Mr. Pimpao had sent the complainant. In any event, Mr. Davis met with the complainant. Mr. Davis testified that the complainant had with him a "list of complaints" about the job and that he did not really elaborate on any of the points contained in the list. Mr. Davis said that at no time did the complainant mention anything about the state of the electrical cables on the vacuum cleaners, safety, or safety hazards at the workplace. According to Mr. Davis, he asked no questions of the complainant, and the meeting ended with him promising the complainant that they would meet again after Christmas. Mr. Davis said he later showed the list to both Mr. Pimpao and Mr. Monds, the manager of quality control.
The complainant testified that for some time prior to this meeting, he had been concerned about safety. In particular, his concerns seemed to centre around the electrical cables on the vacuum cleaners and the long hours some employees were agreeing to work. From his testimony it would appear that at the heart of the first concern was the complainant's view that there were cords with "exposed and raw wire" being used nightly, and that the respondent in general, and Mr. Pimpao in particular, was not keeping abreast of the situation by replacing these cords. The complainant said that before meeting with Mr. Davis, he had talked to Mr. Pimpao about the electrical cables on a number of occasions, but did not pursue the matter. According to ':he complainant, he decided on his own in December to go to see Mr. Davis to discuss the problems he was having with Mr. Pimpao. He recalled the meeting as being earlier than December 17th, but could not give an exact date.
The complainant said that prior to meeting with Mr. Davis he went to a restaurant across the street from the respondent's offices and drafted the list referred to earlier. He said that at 11:00 a.m. he met with Mr. Davis and handed over the list. The complainant said that he went over the list with Mr. Davis and, although he admitted that the word "safety" was not mentioned, he testified that he regarded safety as being the underlying theme of the discussion. Essentially, the complainant and Mr. Davis gave the same account of that meeting.
The list which the complainant gave to Mr. Davis is reproduced below:
"1. The English copy of the complaints doesn't arrive by 10:00 p.m.
Sometimes the 2nd and 3rd complaint on a given task is the first one we see.
Sometimes the English is mis-read in Portuguese over the phone to Edmond [the foreman on site]; & not until the English arrives & I compare the 2 do we find a floor number has been mis-read as a location or vice versa. Or a significant word in the English has been dropped.
The service we get from the office is lousy: a. Materials — urgent calls for materials go unanswered for days; b. Manpower — workers are constantly pulled out of the building, hours extended to 12, absenteeism is generated, & we never get replacements; c. Machine Repairs - several of our machines are usually semi-functional — weak suck - Edmund keeps them as well prepared as possible but only a total breakdown of the machine seems to merit the attention of the office.
Disruption of Scheduling. Visits from supers on peak days (especially Tues. & Weds.) or peak hours (especially Midnight to 4) divert the Forepeople. I refuse to sit down & almost refuse to participate in 4-person inspection because of bad timing of the visit."
Without for the moment discussing the safety situation at the workplace or the complainant's concerns as expressed in paragraph 12 of this decision, it is reasonable to conclude that anyone reading the above list would not conclude that either safety or safety hazards at the workplace was the subject matter of any of the complaints. Therefore, if safety was indeed uppermost in the complainant's mind, it is not obvious from the list he drafted. Even accepting the complainant's account of the discussion he had with Mr. Davis about the list, it is still virtually impossible to conclude that a reasonable person in Mr. Davis' position would conclude that he was being talked to about safety. There is in fact nothing in either the list or the account of the discussion to lead anyone to any other conclusion than that the complainant was making very general complaints about his work situation and about Mr. Pimpao's competence as a supervisor. This appears to be exactly what Mr. Davis determined after his December meeting with the complainant.
The next meeting that Mr. Davis had with the complainant occurred on January 2, 1980. At that time Mr. Monds also attended. This meeting was called at the initiative of Mr. Davis who sent a note to Hydro Place to have the complainant attend at the respondent's office. The thrust of the accounts given by both Mr. Davis and Mr. Monds was that they wanted to discuss the situation at Hydro Place, to let the complainant know what they expected of him, and to try to tell him why there were problems there. In particular, both of them stressed that the complainant was specifically instructed about the chain of command and the channels of communication which he should follow. Mr. Davis said that they did not discuss the complainant's list of complaints because they did not want him either to get angry or to feel threatened. It would appear, though, that they attempted to get the complainant's views on whether the employees were satisfied with their latest raise, and that the question of transferring the complainant to another building was discussed. According to Mr. Davis, both he and Mr. Monds still hoped that the complainant could be a good employee in another setting. Both Mr. Davis and Mr. Monds were certain that the complainant did not discuss safety, electrical cables, or any other safety issue.
The complainant's account is somewhat different. He testified that he began the discussion by dealing with the first issue which he had raised on his list, but that he was interrupted by Mr. Monds who questioned him about a dispute concerning the way the employees were paid for New Year's Eve. The complainant asserted that he discussed both soap and cables at the meeting. He said that in relation to cables, he told them that he asked about cables every night, that he "tried" to say that there was no regular supply of cables from the office, that when the foreman received cable he would repair the machines as they required it, and that there would be times when the cables were not in good condition, but that Mr. Pimpao did not respond to the situation. The complainant agreed that he did not use the word "safety" in connection with any of his remarks.
If the: Board accepts the complainant's evidence that cables were discussed, it seems odd that he would discuss such a subject in conjunction with soap. A connection between the two commodities is only obvious if they were discussed as part of a general complaint about Mr. Pimpao's performance in ensuring that the site was receiving necessary supplies. It would not be unreasonable, therefore, to conclude that the emphasis was again placed on Mr. Pimpao's deficiencies as a supervisor rather than on any potential safety hazard. The Board does not accept that the complainant raised these issues with the respondent on January 2, 1980; it is more probable that, in view of the complaints received about the complainant, he was brought into the office that day to be specifically instructed in the manner in which he should conduct himself in the future.
Mr. Davis testified that on January 3, 1980 he talked to Mr. Pimpao to see if the complainant 'has doing what they had asked of him. He said that the information he received was to the effect that the complainant had not done what he was requested to do, and that he had complained about the pressure tactics used on him by Messrs. Davis and Monds. This was largely confirmed by the complainant, who did acknowledge that he felt somewhat threatened or intimidated by the encounter — or, more specifically, by spatial relationship of the other two men to him. The Board does not accept that the complainant was consciously threatened or pressured by either Mr. Davis or Mr. Monds; however, it would appear consistent with the conclusions already reached about the meeting that the complainant would have left with some sort of perception that the respondent was not taking his side in any conflict with Mr. Pimpao. To tk'at extent, and to that extent alone, it may be possible to conclude that the complainant felt threatened. As a result of his conversation with Mr. Pimpao, Mr. Davis left word to have the complainant call him the next day. The complainant never called Mr. Davis.
On January 3, 1980 the complainant arrived at work wearing around his neck a copy of an article taken from that morning's Globe and Mail entitled "Employers told not to retaliate against union activities". The article contains an account of the Board's decision in Oil, Chemical and Atomic Workers International Union v. Wyeth Ltd., [1979] OLRB Rep. Dec. 1311. That case had nothing whatsoever to do with safety; the article had nothing to do with safety. The complainant said he wore the article to work and then left it hanging around the coat tree in the office because he wanted the employees to know there was some job security.
The great majority of the employees, according to all of the evidence, had only a rudimentary knowledge of English and many knew no English at all. How the complainant expected to convey his message about job security to his audience in this manner is hard to imagine.
The complainant also testified that on January 2nd there had been a problem with one of the cords on a vacuum cleaner, and that by January 3rd his concern had prompted him to find a way 'to bring the problem to the attention" of the respondent and to get around Mr. Pimpao's failure to communicate these matters to the respondent. It seems that even the complainant was uncertain that he had brought the alleged safety hazards to the attention of the respondent in the two meetings where he claimed to have discussed his concerns about safety. In any event, the complainant wrote the following message in the log book kept by the security guards for recording all after-hour movement to and from the building:
"OFFICIAL NOTICE
My work in this Building is not yet finished as I am preparing a comprehensive study & recommendations to fulfill my obligations under the Occupational Health & Safety Act 1978 for submission to Adelaide, Hydro, Canada Square & the Ontario Ministry of Labour.
Albert Gedraitis"
There was no supervisor in the building that night, and the notice did not come to the attention of any representative of management.
On January 4th the complainant arrived at work and signed the security guard's log book for the building. Around 9:00 p.m. he returned to the security guard's desk and waited for Mr. Pimpao and Mr. Vasconcelos (another supervisor) to arrive. When they arrived, the complainant wrote out a copy of the notice, read it aloud, and asked the security guard to bear witness to the encounter. He said that the two supervisors asked him to accompany them to the office and then proceeded to question him about his January 2nd meeting with Messrs. Davis and Monds. He said that he told them that he had been "grilled and cross-examined" at the January 2nd meeting, and that he told Mr. Pimpao that along with his safety report, he was also going to take action to see past wrongs (such as missed overtime opportunities) against him were also righted. Messrs. Pimpao and Vasconcelos left and the complainant returned to work.
Mr. Davis said that at 10:00 p.m. on January 4th he was telephoned at home by Mr. Vasconcelos. The latter told him that he had gone to Hydro Place at Mr. Pimpao's request to assist Mr. Pimpao in investigating a report that the complainant had written some sort of official notice in the Hydro log book. Mr. Davis testified that his immediate reaction was that he had told the complainant not to write anything to the customers without coming to the respondent first at the time of the IBM incident, and that the complainant had gone ahead and done it again. He said that he was not told what the notice said, and that such knowledge would not have affected his decision at all. At that time he decided to discharge the complainant and instructed Mr. Vasconcelos to "get him out of the building". He also told Mr. Vasconcelos that he would be in the office on Saturday if the complainant wanted to talk to him.
Sometime between 12:30 and 12:45 a.m. on January 5th the complainant was discharged by Mr. Vasconcelos in the presence of Mr. Pimpao and the security guard. Mr. Vasconcelos told the complainant that he was discharged and, when asked by the complainant for reasons, said that he would have to call Mr. Davis. The complainant also said that, when told he was fired, he said to the two supervisors, "You are in violation of the Occupational Health and Safety Act" but they ignored him. The complainant was present when Mr. Vasconcelos used the telephone and heard him say, "Albert wants a reason for being fired". Mr. Vasconcelos then told the complainant that his work was unsatisfactory, but the complainant derided that reason and challenged Mr. Vasconcelos to do better. Mr. Vasconcelos then repeated the complainant's words over the telephone; he did not, however, mention the Act at any time during his telephone conversation. The complainant was then told reasons by Mr. Vasconcelos; those reasons were then given to the complainant in writing and he left the premises.
Mr. Davis testified that he was asleep when Mr. Vasconcelos telephoned him after midnight. Mr. Davis said he was informed that the complainant would not leave without a written notice of termination so he dictated reasons to Mr. Vasconcelos. He acknowledged that the notice given to the complainant was dictated by him to Mr. Vasconcelos. He said that while talking to Mr. Vasconcelos, he could hear shouting in the background, and the reasons contained in the notice were given after having been awakened from sleep. The note given to the complainant is reproduced below:
"To Albert Gedraitis
As of Jan. 5 1980 at 12:45 a.m. you are fired from Adelaide Main.
Reasons Given:
Unco-operative and unwilling to accept direction [sic] from supervision as said by Mr. Rick Davis Operations Manager.
Roy Vasconcelos"
Later that day Mr. Davis saw the notice written by the complainant in the log book. He said that when he saw it, he thought that it might give Ontario Hydro the wrong impression of the respondent's safety methods and equipment. He said that up to the time he saw the notice he was unaware of any safety complaint made by the complainant. Mr. Davis said that, in any event, the client's log book was not an acceptable method of communicating with the respondent. The complainant himself admitted that, when he wrote the notice, he knew that the respondent would take offence at the manner of communication he had chosen.
In order to put the matter in context and to assess the situation, it is necessary to examine the safety situation insofar as it concerns the respondent and its employees. The respondent has prepared a booklet entitled "Personnel Policy Manual". The booklet is thirteen pages long and does deal in a very general way with safety matters. For example, it instructs employees to tell their supervisors of anything on the job that is potentially dangerous and might cause injury. Mr. Monds testified that each new employee should be given a copy of the booklet and that a copy should be posted at each site. The complainant said that he had never been given such a booklet, and had never seen a copy of it posted at Hydro Place. The respondent's evidence falls short of establishing that the booklet was in fact distributed. Moreover, even if it was distributed, given the evidence about the composition of the work force, it is highly unlikely that the booklet would be intelligible to the majority of employees. Therefore, while the booklet indicates that the respondent's intentions were to inform employees about safety, amount other things, its execution falls short of carrying out this intention in a meaningful way.
The respondent's evidence was that, leaving aside incidents where employees may have suffered minor injuries (such as back strains or cuts), there were only two incidents which occurred at Hydro Place and which were brought to its attention. One was an occasion when an employee was overcome by fumes from a chemical used in a photocopier. That chemical had been improperly disposed of by someone unconnected with the respondent. The other was an incident where a cord on one of the respondent's vacuum cleaners was cut when it was found to be unsafe. The complainant in his testimony itemized several incidents dealing with fumes, chemicals, faulty electrical cables, etc. In response to a subpoena, Ontario Hydro produced eight documents dealing with safety incidents which the complainant introduced to substantiate his evidence. The Board has examined those documents and, as a result of that examination, the obvious conclusion is that the credibility of the respondent's evidence is not seriously diminished by those documents. Most of the documents deal with chemicals and none of those were addressed to or distributed to any of the respondent's personnel. As a matter of fact, one memo dated October 1, 1979 seems to confirm the respondent's evidence that there was one incident where an employee fainted because of fumes. None of the documents dealing with chemicals suggest that these chemicals belonged to or were used by the respondent in its cleaning operation. The memos also suggest that the problem was not being ignored by those responsible.
There are two documents which deal with electrical cords on the respondent's vacuum cleaners. The first, dated August 24, 1979, is reproduced below:
"Memo To MR. PAUL STREET August 24, 1979
Foreman- Cleaning Services
Building and Office Facilities
Dept M010
Subject Cutting of fault y cable on Adelaide Vacuum
Messrs. Chaplin and Monds have contacted me today regarding last nights incident. As I understand, you have cut a badly damaged cable on an Adelaide Co. vacuum in order to stop the staff from using this particular piece of equipment.
I backed up your prompt decision, and told both men that you had to act when your complaints and warnings were ignored. I also told them that it is your duty to protect the life of anyone working on Hydro premisses [sic] and property belonging to Hydro. A cable without insulation can cause accidents or fires.
However, should you encounter similar safety hazards in the future, please do not touch the equipment, but have it impounded by the Security Officer on duty.
R. Beran
Supervisor Cleaning Services
Building and Office Facilities"
The respondent's evidence about an incident when the cable on one of its machines was cut referred to this incident.
- The Board also heard evidence from Mr. John Guarisco, the shift superintendent for building security at Hydro Place. He was the author of one of the reports put before the Board. That report is reproduced below:
"Time: 16:10 hours Date: 80-05-08
Area: Main Floor Bldg: 620 University Avenue
On the above time and date, Mr. Albert Gedraits [sic] (phone 368-9150) an ex-Adelaide supervisor who is currently in court with a law suit against Adelaide Cleaning Company, approached the writer at the 620 security desk and asked if I could appear in court on his behalf in regards to an incident that occurred around January 24-30, 1980 on the midnight shift. Mr. A. Gedraits stated that if I didn't come voluntarily he would subpoena me to go to court on June 3, 1980 at 400 University Avenue on the 6th floor. The following is a detailed account of the January 24-30, 1980, incident. While stationed at the Control Centre Mr. John Duarte, a cleaner, plugged his vacuum cleaner at the Control Centre outlet and in doing so sparks and smoke emited [sic] from the outlet. The writer at once pulled the cord out of the outlet and refused the cleaner to use the machine until it gets repaired. A check was done and four more vacuum cleaners (cords) were found to be unsafe. Mr. Edmond Correia, foreman, was informed about the incident and was told that the machine wouldn't be released to him until the cords were replaced on all machines that needed to be repaired.
Mr. E. Correia went to his Head Office and came back with new cords for all the vacuum cleaners. The cords for five machines were all replaced by the next day.
J. Guarisco
Shift Supervisor
Head Office Building Security"
Mr. Guarisco said that he could not recall when the incident occurred, but that he was certain that the complainant was not present when the incident occurred and did not accompany him on any inspection tour to examine other vacuum cleaners. The complainant claimed that this occurred on January 2nd and that he accompanied Mr. Guarisco on his tour. In view of Mr. Guarisco's account of events, it is difficult to accept that this incident occurred before the complainant's discharge, or that he had any knowledge of it when he wrote his "official notice" in the log bock.
There was a great deal of evidence given about the respondent's inspection of its electrical cables, and the supply of those cables for replacement. In view of all of the evidence presented, .t is not possible to conclude that the respondent was unconcerned with safety or unaware of the importance of ensuring the electrical cables were in good condition. The situations described in the testimony of Mr. Guarisco and in the memo of August 24, 1979, do suggest, though, that there were cases where problems with electrical cables were not attended to until brought to the respondent's attention by someone else. While this does not wholly confirm the complainant's assertion that there were always frayed cables on the vacuum cleaners, it should give some cause for concern by the respondent that the equipment was not always being properly inspected or cared for by its employees and supervisors. In all candour, the only real potential safety hazard wholly within the control of the respondent to which the Board was directed was the electrical cable situation. The evidence falls for short of allowing the Board to conclude that there was indeed a safety hazard at any material time; but the evidence is such that it can be concluded that the respondent should take steps to examine its internal procedures to ensure that electrical cables are never used when they are in an unsafe state.
The evidence before the Board is such that it is more probable than not to conclude that the respondent never received any complaints from the complainant concerning safety matters; that any complaints it received were related to supplies and the competence of Mr. Pimpao; that the respondent was, at all material times, only aware of the safety-related incidents which were dealt with in its evidence; and that the respondent's decision to discharge the complainant was totally unrelated to any desire to prevent him from complying with or seeking enforcement of the Act. The most probable conclusion concerning the reason for the complainant's discharge is that it was for the reasons given by Mr. Davis. The complainant was, at all material times, aware that the respondent regarded direct communications with its clients, which could be interpreted as being critical or embarrassing, as being very serious matters. He had already been severely reprimanded once before for such action. He knew that he ought not to disregard the proper channels of communication for making his complaints known and he knew that what he was doing would put his employer in a bad light in the eyes of its clients. The reasonable inference is that he acted in such a way to embarrass his employer because he believed that his complaints about Mr. Pimpao's competence were obviously not being accepted at face value.
In any event, the complainant has argued that he was in fact seeking compliance of sections 14(l)(b), 14(2)(g), 16, and 17(l)(c). Those sections read:
"14.11) An employer shall ensure that,
(b) the equipment, materials and protective devices provided by him are maintained in good condition;
(2) Without limiting the strict duty imposed by subsection 1, an employer shall,
(g) take every precaution reasonable in the circumstances for the protection of a worker;
16.—(l) A supervisor shall ensure that a worker,
(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and
(b) uses or wears the equipment, protective devices or clothing that his employer requires to be used or worn.
(2) Without limiting the duty imposed by subsection 1, a supervisor shall,
(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;
(11 where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and
(c) take every precaution reasonable in the circumstances for the protection of a worker.
17.—(l) A worker shall,
(c) report to his employer or supervisor the absence of or defect in any equipment or protective device of which he is aware and which may endanger himself or another worker."
With respect to the duties imposed on employers and supervisors in sections 14 and 16 of the An, there is no evidence to suggest that the complainant ever clearly brought to the attention of his employer and supervisors that his criticisms dealt with any matters within the ambit of those sections. The respondent's evidence was that it did not interpret the complainant's criticisms as being about safety matters, and the complainant himself testified that he regarded his list and subsequent discussions with the respondent as dealing primarily with Mr. Pimpao's performance as supervisor. It is the most probable conclusion, based on the evidence, that the complainant never made any attempt to discuss safety, per se, or violations of the Act with either his employer or supervisors. There is also insufficient evidence to conclude that either the employer or any of its supervisors were in violation of the Act. The evidence regarding tie safety situation as a whole and the complainant's failure to bring safety clearly forward as a topic for discussion, leads the Board to the conclusion that he was not trying to ensure compliance with or enforcement of the Act insofar as it concerns the respondent or its supervisors.
It is true that section 17(l)(c) imposes a duty on an employee to report certain matters "to his employer or supervisor". The duty is to report to those people alone and not to the employer's customers or to the world at large. There was never a report. At most, there was a notice that the complainant was going to report some things. The notice did no more than suggest that obligations under the Act are possibly not being met. The notice itself would not serve as a report within the meaning of section 17(1)(c). At most, the notice written in the log book can be regarded as notice to the respondent that the complainant intended to make some sort of report which might fall within the scope of the report contemplated in section 17(1)(c). Assuming I hat the Act protects those employees who give notice that they intend to comply with a specific duty under the Act at some unspecified date, the employee claiming this sort of protection is not entitled to use the idea of safety to make him immune to discipline if he chooses an inappropriate medium for conveying this message. In particular, the employee is not entitled to disregard his basic duty of loyalty to his employer's interests in choosing how to convey his message. It may be arguable that extreme safety situations justify extreme methods or that extreme safety situations should influence the Board's determination about the appropriateness of a penalty; however, this is not an extreme case of that sort.
In conclusion, therefore, the Board does not find that the respondent violated section 24(1) of the Act nor does it consider that there is any reason for exercising its discretion to modify the penalty. Accordingly, the complaint is dismissed.
In taking this action the Board wishes to emphasize that this decision should not be read as denying the protection of the Act to employees who seek to fulfill their obligations to. report safety matters to their employers.