[1980] OLRB Rep. July 981
1297-79-U Robert Pharand, Peter Digiglio and John Tolin et al, Applicants, v. Inco Metals Co., Respondent.
BEFORE: M. G. Picher, Vice-Chairman and Board Members D. B. Archer and J. A. Ronson.
APPEARANCES: Norman Carriere for the applicant; H. A. Beresford, D. D. Sheehan and F. W. Hodkin for the respondent.
DECISION OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER D. B. ARCHER; July 10, 1980
On September 3, 1979 twelve employees of Inco Metals Company (hereinafter referred to as "Inco") were sent home for refusing to perform work which they alleged was unsafe. Disciplinary notations were subsequently placed in their records. The employees have complained under section 9 of The Employees' Health and Safety Act, 1976, S.O. 1976, c. 79 alleging that Inco acted contrary to the Act by imposing discipline upon them and effectively suspending them for part of a day because they invoked the protection of the Act.
The Act, which the Board will examine in greater detail below, gives an employee who has reasonable cause to believe that working conditions are unsafe the right to refuse to work. An employer may not discipline nor threaten to discipline an employee for taking such action so long as the employee's refusal to work conforms to the conditions of the Act.
The twelve grievors are employed in Inco's copper refinery at Coppercliff. They work in the Anode Department where the refining and casting of copper is done. Three large anode furnaces are the centerpiece of that department. Shaped roughly like a loaf of bread en-
cased in a steel frame, each of the furnaces has an interior space of fifty-one feet by seventeen feet. The walls and roof of the furnaces are made of heavy duty refractory brick designed to withstand the heat generated inside the furnaces by large gas-fired burners.
To appreciate the facts of this grievance it is necessary to briefly review the refining process in the grievors' place of work. The first stage of the refining process in a furnace is the charging cycle. Two kinds of material are put into the furnace during charging. The first material introduced is solidified copper in various shapes and forms, commonly referred to as cold charge. A~ the cycle progresses, eventually hot metal, or blister copper, transferred by rail from the Coppercliff smelter is placed in the furnace to complete the charging cycle. The charging phase generally takes from fifteen to twenty hours. During that time the heat in the furnace builds up and the solid material placed in the furnace is transformed into a molten bath.
The next phase of the cycle is the skimming stage. When the copper in the furnace has melted thoroughly, foreign substances rise to the surface as slag. Working from the skim bay, a window -like opening at one end of the furnace, the furnace crew remove the slag from the surface of the bath with a long hoe-like instrument.
When skimming is complete the furnace crew proceed to the most violent stage of the refining cycle, the poling phase. At this point large green logs, usually maple, are inserted into the bath through the skim bay door for up to two-thirds of their length. By a fulcrum the long end of the pole is then submerged into the molten metal. The purpose of inserting green logs into the bath is to deoxidize the metal. That process releases tremendous amounts of energy and the furnace fills with smoke and flame. If, as sometimes happens, a log has a pocket of snow or water within it there may be a violent explosion that can, on occasion, damage the walls or roof of furnace. The poling stage normally takes from 6 to 8 hours and can involve between eight and fifteen logs.
The final stage in the cycle of a copper anode furnace, the stage during which the events of this complaint took place, is the casting stage. At this stage the furnace is drained as the molten copper is poured into molds which become the anodes in the electrolytic process. Casting takes l)lace on the opposite side of the furnace from the large doors through which the furnace is charged. During this phase of the process poling is complete and the copper bath in the furnace is still and quiet. During casting molten copper comes out of the furnace through a vertical slit known as the tap-hole. The metal flows into a small pool and then down a short steam-way into a ladle. The ladle, which resembles as large bucket, pours the molten copper into flat rectangular molds that come to the ladle on a large rotating carousel called the wheel. At the point of the wheel furthest from the ladle the copper molds are removed and placed in a cooling tank while empty molds are put back on the wheel in their place.
The Board visited the Anode Department to take a view of the casting operation in progress. Clearly the twelve members of a casting crew are involved in a delicate process that requires close teamwork.
A key man on the casting team is the tapper. He controls the flow of copper from the furnace to the ladle. Protected by asbestos coveralls, heavy mittens and a face shield, the tapper works next the tap hole, opening and closing it as required. The tap hole is a slit in the side of the furnace approximately 6 inches wide running halfway up the wall of the furnace. About twelve inches thick, during the charging, skimming and poling stages it remains sealed with a putty-like cement. To drain the furnace of its copper the tapper removes part of the cement plug at the top of the slit, thus allowing the copper to flow, like water over a dam, into the trench that takes it to the ladle and molds. As the level of the bath in the furnace falls the tapper chips away as much of the cement seal as is necessary to maintain the desired flow. While at the tap-hole the tapper is, in a sense, like a man standing next to a narrow dam.
The large flat wheel which carries the molds to and from the ladle is controlled by the wheelman. He calls the signals for the rest of the crew. Seated on a high platform overlooking the wheel and facing the tap-hole, he monitors the flow of the copper. If the ladle appears to be overly full he signals to the tapper to either slow down or completely stop the flow of molten metal. The tapper will then insert either a brick, to slow the flow, or a larger plug of soft clay into the tap-hole to stop it completely. This process requires concentration and teamwork between the tapper and the wheelman. It also requires almost constant eye contact between them. Their signals have to be visual due to the tremendous noise in the refinery.
The wheelman, who controls both the rotation of the wheel and the tilt of the ladle, also acts as a safety watch for the casting crew. Because molten copper explodes violently when it comes into contact with water, the wheelman keeps a constant watch to see that the molds being carried towards the ladle by the wheel are entirely free of water. He also watches for any chance that molten copper might overflow either the trench or the ladle and spill onto any area of the floor where there might be water, as there occasionally is from jets underneath the wheel which spray the molds to cool them. If the wheelman spots either of those conditions he pushes an alarm button, signaling all members of the crew to clear the area.
Water emergencies are not an everyday thing. In fact they rarely occur. When they do, however, the danger is enormous. If the molten metal should ever flow out of control and come into contact with moisture on the refinery floor the risk to any employees in the vicinity is extremely high. A serious incident occurred some years ago. A tapper lost control of the flow when the bottom of a tap-hole failed. Some 200 tons of molten copper emptied out of the furnace and onto the refinery floor. All of the employees were forced to evacuate the refinery which filled with heat, smoke and explosions. Processing and handling molten copper is serious and dangerous. As was apparent from the Board's visit to the refinery as well as from the evidence adduced at the hearings, both the company and its employees treat it as such.
Against that background we turn to the events giving rise to this complaint. At 10:45 p.m. on August 31, 1979, the charging cycle was begun on anode furnace No. 1 Work proceeded normally until the shift from midnight to 8:00 a.m. on September 2, 1979. That was the grievors' shift. Burt Duckett, the shift foreman detected a hole in the roof of No. 1 anode furnace.
The roof of the furnace then had a sprung-arch roof. Shaped like the top of a loaf of bread, it consisted of a canopy of refractory brick, eighteen inches thick, wedged together, not unlike the roof of an igloo. An anode furnace roof has a life expectancy of from three to four years. At the time in question the roof of anode No. 1 was due to be entirely replaced in about a month. In some places, through normal wear and tear, its thickness had been reduced to approximately twelve inches.
The tension of the roof was maintained by a number of tie-rods. They attach to a metal framework at the sides of the furnace and run across the width of the furnace above the roof. The tie-rods allow the tension of the roof to be adjusted as necessary. In addition to the tie-rods there is a network of steel rods running over the top of the roof. These are known as hanging rods. When a hole develops in the roof, something that happens fairly frequently, refractory brick s suspended from these rods and mortared to form a patch as required. When the bricklayers perform patching work in mid-cycle, as they sometimes must, the heat of the furnace is cut back as far as possible. For the copper to stay molten, however, the level of heat has to remain extremely high. Working from planks suspended in the metal work above the furnace the ma ions must operate very quickly. Because of the extreme heat they are sometimes required to alternate every few minutes. In these circumstances the most they can do is make a temporary patch, pending a more permanent repair when the cycle has ended and the furnace has cooled. Tie evidence establishes that anode No. 1 was then in its last days as a furnace with a sprung-arch roof. It has since been converted to a new form of roof in which each refractory brick is individually suspended on a metal hanging rod.
When the hole developed in the roof of No. 1 anode, at the request of Mr. Duckett, Mr. Thomas L. Prior, Superintendent of Maintenance at the copper refinery, arranged for the bricklayers to come and repair the leak. The repairs were scheduled for the start of the day shift.
Flame was leaking through the hole when the day shift foreman, Mr. Christopher Wisson, arrived at work at approximately 7:00 a.m. At that point the furnace was in the skimming stage. When the bricklayers arrived at 8:00 a.m. Mr. Wisson asked them to wait until skimming was complete before making the repairs to the roof. Skimming was completed at 9:00 a.m.. The burners were then cut back as low as possible to permit the patching to be done. It was essential to patch the roof at that time. The hole posed too great a risk to go unrepaired through the violent uproar of the poling stage, which was next in the cycle. By 11:20 a.m. the bricklayers had completed the repair work and the burners were again turned up.
The poling phase proceeded without incident for about two hours. Then, around 2:00 p.m. Mr. Wisson was called back to the No. 1 anode by the head furnaceman. At that time, with a pole in the furnace, he was confronted with a large column of flame which extended some twelve feet into the air through the hole which had been patched by the bricklayers. According to Mr. Wisson's testimony the flame extended through the steel work and rods above that part of the furnace. On Wisson's instruction the pole was immediately raised out of the copper bath. That did not solve the problem. The flame continued to pour from the furnace to a height of approximately eight feet. Mr. Wisson then ordered the pole removed from the furnace entirely. That being done the flame subsided sufficiently for the foreman to go up into the area above the furnace to inspect the hole. On an initial inspection Mr. Wisson could not detect a specific hole in the furnace though he could see an area some three feet square that was glowing red.
To make a scaffold that would let him get a closer look at the leak Mr. Wisson placed some large planks in the metal framework above the furnace. They immediately caught fire. They were withdrawn, soaked with water and put back in place so that Mr. Wisson could again go back on top of the furnace. Straddling the planks Mr. Wisson then placed, as best he could, sheets of copper over the leak as well as several sheets of refrisel cloth, a fire-proof material. Because he was working in a complex meshwork of steel hanging rods, some of which were so hot that they were sparking and appeared to be oxidizing, it was difficult for him to be exact or thorough in the placement of either the copper sheeting or the fireproof cloth. By Mr. Wisson's account his efforts were more directed to dispersing the flame than to stopping it entirely. Even before Mr. Wisson came down from the furnace roof the copper sheeting and refrisel cloth which he had placed there were beginning to glow red with heat.
Mr. Wisson testified that his purpose was to control and disperse the flames sufficiently to allow the poling cycle to be completed. He did not believe that circumstances justified calling in the bricklayers once again. According to his testimony he had, on other occasions in the past, used this same method to patch leaks in the roof of an anode furnace.
With the copper sheets and cloth in place poling resumed. Under the increased heat of the furnace the entire area which the foreman had covered glowed a bright red and the refrisel cloth began to turn white. Flame continued to escape from the area of the leak, though it now was more diffused, leaking to a lesser height from the edges of the patchwork, rather than rising in a single column. When the day shift ended at 4:00 p.m. poling had resumed with the leak in the furnace roof somewhat abated by the makeshift patch.
At approximately 8:00 p.m. the furnace was ready to tap. At that point two men on the casting crew, E. Langlois and G. Graham, refused to tap the furnace on the basis that it was unsafe. Those two employees are not grievors in these proceedings. The grievors worked on the ensuing graveyard shift. To fully appreciate the later events, however, it is necessary to examine the events surrounding the initial protest of Langlois and Graham.
Both Mr. Langloisand Mr. Graham were members of the Operation Safety, Health and Environment Committee, the first tier of a three tiered joint health and safety committee system responsible for safety in Inco's refinery operating under Article 17.04 of the collective agreement. Mr. Langlois was the tapper on the evening shift.
The two employees first expressed their concern about the patch in the roof of the furnace at the very beginning of the shift. They then spoke to the shift foreman, Mr. Earle Jones. Unsatisfied with Mr. Jones' assurances that the roof was safe, the two employees requested that the foreman call in Mr. Prior, the Superintendent of Maintenance. At approximately 5:15 p.m. Mr. Prior spoke with the two employees and observed the furnace roof with them. The employees continued to express their concern that the roof was in an unsound condition and that it might cave in during the casting operation, causing a surge of molten metal at the tap-hole that would risk serious injury both to the tapper and to other members of the casting crew. When Mr. Prior assured the employees that there was no structural danger, they indicated to him that they wanted a further opinion. Mr. Prior suggested that they contact Mr. Wilf Collins, the bricklayer who had done the repair work on the hole earlier in the day. Instead they called Mr. J. Tyynela, an engineer and Safety Inspector with the Ministry of Labour.
Mr. Tyynela came to the refinery with Mr. T. Baker, also a Safety Inspector with the Ministry. The two engineers first met privately with employees Langlois and Graham. They then had a private discussion with Mr. Prior, Mr. Cooper and Mr. Jones of the company. During that visit the Safety Inspectors also went to the furnace and examined the roof, both with the employees and the three company officers, although not at the same time.
The leak then appeared as a red, glowing hot spot with flame leaking around its edges. The burners had been cut back and the furnace was still. Because the entire area was covered by the copper sheets and refrisel cloth, neither the employees, the company officials nor the safety inspectors could tell whether any bricks had fallen from the patch into the bath. It appears, however, that some brick had collected in the bath and was visible through the skim bay. It is not uncommon for refractory material to flake off and fall into the furnace during the refining cycle No firm conclusions could, therefore, be drawn from that. A portion of the roof in the area of the hole was flat. It was, by Mr. Prior's account, "not a good looking roof'. Some twenty-four hours later, when the furnace was empty, an inspection revealed a hole of some two and a half feet square at the location of the leak. The evidence is not clear, however, whether the hole had reached that dimension at the time that Mr. Tyynela and Mr. Baker first inspected the furnace. The only thing that is clear is that on the evening shift of September 2, 1979, no one could tell the exact size of the opening, if there was an opening, under the copper sheets and cloth that had been placed over the leak by the day foreman.
Aftr examining the furnace with the company representatives first, and then the employees, the Safety Inspectors spoke to Langlois and Graham in a private office. They thereafter mex in an office with the two employees and the three company representatives. Langlois and Graham continued to express their concern that the roof could cave in, in whole or in part, causing wave action in the bath that would result in an uncontrollable surge of molten metal at the tap-hole.
Mr. Cooper and Mr. Prior then reiterated their opinion that a complete collapse of the roof was extremely unlikely. They said that at most a few bricks might fall from the area of the patch and that this would not cause any substantial wave action in the furnace. Their opinion was based on a considerable amount of experience. Mr. Cooper, the General Foreman in the Anode Department, has some twenty-nine years experience with anode furnaces. Mr. Prior has eighteen years experience in furnaces of the type used in the refinery. Mr. Cooper testified that he could recall seeing a hole in the roof of a furnace as large as six feet in diameter and that there had nevertheless been no overall collapse of the structure. According to Mr. Cooper, the refractory bricks in the furnace roof tend to bind together over time with the intense heat and as a result the roof tends to be extremely firm.
The Safety Inspector did not have the knowledge and experience of the company's officers in the workings of anode furnaces. They therefore inquired carefully of both Mr. Cooper and Mr. Prior as their experience and the basis for their opinion that the roof of No. I anode furnace was safe. They accepted the view, expressed again in these proceedings by Mr. Cooper, that once the violent poling stage of the refining cycle was complete and the furnace was in the quieter phase of casting, there was no reason to shut the furnace down for roof repairs and no substantial risk to the casting crew. The two safety inspectors then advised Mr. Langlois and Mr. Graham that in their opinion the company's view was justified.
When Mr. Langlois again expressed his concern about being splashed by a sudden surge when his back might be turned, Safety Inspector Baker asked him whether he might feel better if a secord man were assigned to work at the tap-hole with him. The idea of the second tapper was to ensure that one of the two men could at all times be watching for a surge or spray from the tap-hole with a view to warning the other man. Mr. Langlois was not enthusiastic about that suggestion. The company's own officials testified that they saw no value in it. The Board, having viewed the casting process, is satisfied that if there was any risk of a substantial and sudden surge of molten metal at the tap-hole, placing two men at that location would only double the risk of injury. In any event, Mr. Langlois agreed to that arrangement. The company, because it did not believe there was any risk, also consented. The Safety Inspectors then advised the company that it must keep two men stationed at the tap-hole at all times until the casting cycle was complete on anode furnace No. 1. With that Langlois and Graham returned to work, although by this time the shift was almost over. It appears that in fact the casting was not begun, save for the making of a slight opening at the top of the tap-hole towards the end of the evening shift. So matters stood when the grievors returned to work.
The evidence is clear that the grievors were unsettled by the situation they encountered as they arrived. When their previous shift had ended, some sixteen hours prior, there was a substantial leak of flame from the roof of the furnace. At about the time the grievors had left for home arrangements had been made to cut the burners back and have the bricklayers put in a patch. Now, upon their return, where they might have expected to see a satisfactory patch they saw a glowing red mass of copper sheeting and refrisel cloth. A considerable amount of flame was still leaking from the cracks and edges of the make-shift covering supporting the roof. The roof was flat in the area of the hole and at least one tie-rod appeared red hot, as well as a number of the hanging rods which had been subjected to heat and flame for an extended period of time. In addition, the grievors learned that the tapper on the previous shift had refused to cast out the furnace, that Safety Inspectors had been on the premises and that an order had been issued that due to the state of the roof two men must at all times be stationed at the tap-hole. Faced with all of those circumstances the entire casting crew refused to tap the furnace. Their foreman was Mr. Burt Duckett. When the employees refused to work Mr. Duckett obtained instruction by telephone from Mr. Cooper as to how he should proceed. Cooper instructed him to contact Mr. Andy Artendale, an employee in another department of the refinery who was a member of the Area Safety, Health and Environment Committee, the second tier joint Health and Safety Committee.
Mr. Cooper and Mr. Prior then returned to the plant. They met the grievors and Mr. Artendale in the lunchroom. Mr. Prior recounted the events of the preceding shift and advised the employees that by the order of the Ministry inspectors two employees must work at all times at the tap-hole. Mr. Prior then suggested to Artendale that he contact Langlois and Graham, the two employees who had agreed to that arrangement. Mr. Artendale adamantly refused. One of the grievors commented that the two employees who had agreed to that arrangement were a pair of idiots. When Mr. Artendale insisted that he wanted to speak to the Ministry inspectors himself Mr. Prior left to call them back to the plant.
While he was gone Mr. Cooper attempted to persuade the employees that the furnace was safe. He told them that with the poling phase complete and the furnace in a calm state it was unlikely that the roof would fall in. The reply from the grievors was "what if it does?" Mr. Cooper reiterated that he did not think that it would. The grievors then expressed their concern over the danger of a surge of molten copper at the tap-hole. They emphasized that they did not think that putting an extra tapper at that location would help at all, and that if anything that arrangement was more dangerous still. The uncontradicted evidence of Mr. Cooper is that the employees were visibly agitated.
Mr. Prior returned and indicated to Mr. Artendale that Mr. Tyynela, the Safety Inspector, wanted to speak to him on the telephone. While Artendale left the room to take the call the group quieted down and waited to see what Mr. Artendale could find out. While they waited for his return, some of the grievors expressed complaints about other aspects of safety in the refinery, including the fact that some safety chains were missing, that some railings on a platform near the tap-hole were not in good repair and that there was an excess of water under the casting wheel.
Artendale then returned from the telephone. He addressed the grievors, telling them that he had just learned from Mr. Tyynela that the order of the inspectors was based entirely on the engineers' acceptance of the opinion of the company's representatives. He emphasized that he personally did not buy it. Mr. Artendale then inquired how the furnace could have been charged with the roof in such poor condition and who could have been responsible for the situation that; had arisen. Mr. Duckett responded that he had inspected the furnace prior to charging and that there had been no apparent problem with the roof at that time.
When Mr. Cooper reiterated that the only solution was to tap the furnace and make the necessary repairs after the cycle was finished, the grievors protested strenuously. Some of them suggested that the furnace should be allowed to cool down and that the bricklayers should be called back in. To this Mr. Cooper and Mr. Prior replied that the company was reluctant to cal [the bricklayers at this stage. In addition to the extreme heat on the surface roof, the bricklayers would be exposed to the risk of splashes of molten metal as bricks fell into the molten bath while they worked. Both Mr. Cooper and Mr. Prior estimated that the risk to the bricklayers in that situation would be greater than the risk to the tapper and the other members of the casting crew. The grievors disagreed.
At the hearing the Board heard evidence from Mr. Prior that it was not practicable for the company to allow the furnace to be shut off entirely and the copper within it to freeze up. Accordin~ to Mr. Prior it would then have been impossible to generate enough heat in the furnace to return that mass of metal to a molten state. It would, in other words, have seriously damaged, if not destroyed, the furnace.
There was nothing, however, to prevent the company from allowing the furnace to be cut back, as had been done after the skimming stage, and to further reduce the temperature at the leak by inserting cold charge into that area of the bath, to allow the bricklayers to effect temporary repairs. That procedure would have cost the company approximately two to four hours of production time. At this point the company had lost an entire shift by arguing with the employees and it would lose yet another eight hours before the matter was resolved.
With the impasse continuing, safety inspector Tyynela returned to the plant. This time he came alone. He had a brief meeting with two representatives of the employees, Mr. Artendale and Mr. Pharand, one of the grievors. Then Mr. Tyynela proceeded to examine the furnace once again, this time in the company of the two employee representatives as well as the company officers who had accompanied him to the furnace earlier. There was no appreciable change in the condition of the roof. The make-shift patch was still glowing red and flames were still leaking out all around it.
It was after 3:00 a.m. when the joint inspection was done. At that point the safety inspector met with the employees in the lunchroom for approximately one hour. After that meeting he emerged and advised Mr. Cooper and Mr. Prior that he was "unable to make any progress with the employees". Mr. Tyynela then advised the company's officers that he would give them his written order, made under Part IX of The Mining Act, R.S.O. 1970, c. 274, to post on the premises. In its final form Mr. Tyynela's order read as follows:
"Pursuant to invoking of Bill 139 at 7:00 p.m. September 2, 1979.
As agreed to by the above personnel, [Messrs. Cooper, Prior, Graham and Langlois] provide a second man to watch tap-hole and flow of molten metal during casting from No. 1 furnace. Notify me when the cast is complete in order to assess extent of damage and to ensure proper repairs."
The order of the inspector was posted immediately in the lunchroom and was read to the assembled employees by their foreman. The foreman then told the twelve employees that the furnace must be cast. Mr. Duckett advised them that there was no other work available, a fact that is undisputed. He told the grievors that if they refused to perform the work they could be disciplined.
Mr. Duckett then began to ask the employees individually if they were willing to work. When the first two had said "no", another of the group stood and said that they were all sticking together and that they still thought that it was unsafe to tap the furnace in the circumstances. Mr. Duckett then told them that he had no alternative but to send them home. With that, at 4:20 a.m. the grievors left the refinery. They were not paid for the balance of the shift. All of them subsequently received disciplinary notations on their records for their refusal to work.
When the day shift arrived at 7:00 a.m. on September 3, 1979, Mr. Cooper and Mr. Wisson, the day foreman, told them what had occurred on the two previous shifts. When the members of the day shift asked Mr. Cooper what he thought, he again stated that he did not feel that there was a substantial risk. Mr. Wisson indicated that he had seen furnace roofs in similar or worse condition when nothing untoward had happened. Mr. Copper also commented that at this point the furnace roof had been sitting without incident for some twelve hours. After considering what Mr. Wisson and Mr. Cooper had to say the employees on the day shift decided to cast out the furnace. This they did, without incident or injury. Casting started at 9:00 a.m. and was completed by 3:00 p.m. Thereafter, with the furnace entirely shut down, a satisfactory permanent patch was put on the furnace roof.
The issue raised by the foregoing facts is whether the company breached the provisions of The Employees' Health and Safety Act, by imposing discipline upon the grievors. That statute provides, in part, as follows:
"2. Where an employee in a work place has reasonable cause to believe that a machine, device or thing is unsafe to use or operate because its use or operation is likely to endanger himself or another employee or a place in or about a work place is unsafe for him to work in, or the machine, device, thing or place is in contravention of The Industrial Safety A ct, 1971, The Construction Safety Act, 1973 or Part IX of The Mining Act, or any regulations thereunder, as the case may be, the employee may refuse to use or operate the machine, device or thing, or work in the place.
3.—(l) Where an employee in a work place refuses to use or operate a machine, device or thing or refuses to work in a place therein because he has reasonable cause to believe that the machine, device or thing is unsafe to Lise or operate because its use or operation is likely to endanger himself or another employee or the place is unsafe for him to work in, or the machine, device, thing or place is in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act or any regulations thereunder, as the case may be, he shall forthwith report the circumstances of the matter to his employer or the person having control and direction over him who shall forthwith investigate the report in the absence of the employee and, if there is such, in the presence of either a health and safety representative, a committee member who represents employees, or a person authorized by the trade union that represents the employee.
(2) Where the employer or the person having control and direction over the employee disputes the report or takes steps to make the machine, device, thing or place safe or comply with The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act, or any regulations thereunder, as the case may be, and the employee has reasonable cause to believe that the machine, device or thing is or continues to be unsafe to use or operate because its use or operation is likely to endanger himself or another employee or the place is or continues to be unsafe for him to work in or the machine, device, thing or place is or continues to be in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act, or any regulations thereunder, as the case may be, he may continue to refuse to use or operate the machine, device or thing, or work in the place unless a collective agreement binding the employee expressly provides otherwise. pressly provides otherwise.
(3) Where the employee continues to refuse to use or operate the machine, device or thing, or work in the place or having returned to work in compliance with the express provisions of a collective agreement binding the employee files a grievance concerning his right to continue to refuse to use or operate the machine, device or thing or work in the place, the employer or person having control and direction over the employee shall notify an appropriate inspector or an engineer, as the case may be, who shall investigate the matter in the presence of the employer or the person having control and direction over the employee, the employee and, if there is such, either a health and safety representative, a committee member who represents employees or a person authorized by the trade union that represents the employee.
(4) The inspector or engineer shall, following his investigation, make a decision whether the machine, device or thing is unsafe for the employee to use or operate or the place is unsafe for the employee to work in or the machine, device, thing or place is in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act, or any regulations thereunder, as the case may be.
9.—K I) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss an employee;
(b) discipline or suspend or threaten to discipline or suspend an employee;
(c) impose any penalty upon an employee; or
(d) intimidate or coerce an employee, because the employee has acted in compliance with this Act.
(2) Where an employee complains that an employer has contravened subsection I, the employee may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply mutatis mutandis to the complaint.
(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection 2, the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection I lies upon the employer or person acting on behalf of the employer.
The foregoing provisions give, for the first time, an employee a statutory right to refuse to perform work in unsafe conditions without fear of reprisal from his employer. This Board must interpret and apply the Act bearing in mind the shortcomings of the pre-existing law that it was designed to remedy. Arbitral jurisprudence had previously provided some protection to employees governed by a collective agreement under which they may only be discharged for just cause. Arbitrators have traditionally adjudicated whether the refusal to perform work that is unduly dangerous is just cause for the discipline or discharge of an employee. (Re Steel Co. of Canada Ltd., (1973), 1973 CanLII 2143 (ON LA), 4 L.A.C. (2d) 315 (Johnston); Re Mueller Ltd.(1974), 1974 CanLII 2375 (ON LA), 7 L.A.C. (2d) 282 (Hinnegan); Re International Nickel Company of Canada Ltd., (1968), 1968 CanLII 1223 (ON LA), 19 L.A.C. 118 (Weatherill)).
It is also arguable that at common law it was the right of an employee to refuse to perform work in conditions that are so dangerous as to be unlawful. In fact that protection has proved illusiary. Firstly, safety laws and regulations might not cover the many kinds of situations that arise in different industrial settings. As a result even though the law of master and servant might prohibit the discharge of an employee for a refusal to perform work that is unlawful, the lines of illegality were often blurred and sometimes non-existent. Secondly, there was no ready, practical procedure by which a rank and file employee could vindicate his common law right not to be discharged for a refusal to perform unlawful work. The time and cost of civil litigation to enforce that right effectively put it out of the reach of the very employees who most needed it.
There are several obvious shortcomings to collective agreements as an exclusive means of protecting the safety of workers. Firstly, that protection extends only to those employees who are organized. It is not available to the substantial number of employees who do not have trade union representation or a collective agreement. And even for organized employees that protection can be uncertain or sporadic. A union, with control over the decision to file a grievance, may not agree with a complainant's view of what is unsafe. And to the extent that a collective agreement may lapse during the "no contract" period, the right to file a safety grievance is suspended. (See, Re Communications Union Canada and Bell Canada (1979), 1979 CanLII 1739 (ON HCJ), 23 O.R. (2d) 701 (Div. Ct.)). The arbitration mode has also been criticized in that the focus of attention is primarily on discipline, and only indirectly on safety. (See, Ison, Occupational Health and Wildcat Strikes, (Reprint Series No. 45, Industrial Relations Centre, Queen's University)). Moreover, collective agreements may not provide the kinds of safety policing mechanisms incorporated into The Employees' Health and Safety Act. As a result, when a grievance over discipline for the refusal to perform unsafe work reaches an arbitrator the evidence may be less finely tuned because of the absence, during the precipitating incident, of input by health and safety committee members from both management and employee ranks. The evidence, and the practical possibility of resolving the problem, can also suffer without the objective input of qualified government safety engineers and inspectors. The enactment of The Employees' Health and Safety Act, can, therefore, be viewed as confirmation that the Legislature recognized that industrial arbitration and the common law did not provide adequate protection to employees confronted with unsafe working conditions.
It would appear that previous statutory protection was also found to be inadequate. The main vehicle of worker protection was The Industrial Safety Act, 1971, S.O. 1971, c. 83. A wide ranging statute that had grown into a creaky machine, it had its origins in the late nineteenth century response to abuses of the industrial revolution. First enacted as the Ontario Factories Act, 1884 (47 Vict. c. 39) it became The Factory Shop and Office Building Act, 1913 (3&4) Geo. V. c.60). Until its repeal by The Industrial Safety Act, 1964, S.O. 1964, c.45 s.39; The Factory Shop and Office Building Act grew, piecemeal, into a catch-all of protections for employees. It forebade the employment of children. It provided a registry to monitor the employment of youths, young girls and women. Among other things it regulated hours of work, required that young girls and women be supplied with chairs and made general provisions for adequate lighting, heating, fire escapes, ventilation and cleanliness in work places. It was not, however, within the power of employees to enforce the legislation. Enforcement required the order of an inspector who could either order corrective measures or close down an operation if necessary. As late as 1964 an employer in breach of a provision of the Act was liable to be fined not more than $200.00 for an offence.
At the same time a panoply of other statutory provisions evolved to govern health and safety in particular areas of industry. Among these are The Operating Engineers Act, R.S.O. 1970 c. 333; The Public Health Act, R.S.O. 1970 c. 377; The Elevators and Lifts Act, R.S.O. 1970 c. 143; The Boiler and Pressure Vessels Act, R.S.O. 1970 c. 47; The Workmen's Compensation Act, R.S.O. 1970, c. 505; The Power Commission Act R.S.O. 1970, c. 354 The Construction Safety Act, R.S.O. 1970, c. 81; The Construction Hoist Act, R.S.O. 1970, c. 80; The Mining Act, R.S.O. 1970 c. 274; The Silicosis Act, R.S.O. 1970 c. 438; The Loggers Safety Act, S.O. 1962-62 c. 76; The Energy Act, S.O. 1971,c.44; The Department of Labour Act, R.S.0. 1970 c. 117; The Gasoline Handling Act, S.O. 1966 c. 61. While legislation in particular areas of hazard such as those covered by the foregoing statutes is necessary, the enactment of The Employees' Health and Safety Act reflects the Legislature's view that the trade-by-trade method of legislation can never be sufficient. Such particularized legislation tends to be enacted in response to, and not in anticipation of, safety and health problems that arise as new technologies are introduced into the work place. Because of the rate of technological evolution, with new processes, chemicals and machinery being introduced into places of employment on an almost daily basis, the important protection of these specialized safety statutes can never entirely keep up. Moreover, such legislation is often effective only to the extent that it can be enforced by the limited resources of government inspection and monitoring. Perhaps the greatest shortcoming of trade-by-trade legislation is that such laws tend to cover only the most pressing and high profile areas of hazardous work.
Before the passage of The Employees' Health and Safety Act, there was a growing awareness that the common law protections, traditional collective bargaining mechanisms and safety laws and regulations tied to specific industries simply weren't adequate. In Ontario a Royal Commission found serious shortcomings in safety enforcement mechanisms then in place. (Ont. Report of the Royal Commission on the Health and Safety of Workers in Mines (Toronto, Queen's Printer, 1976 — Ham Report)). The report expressed concern that there had been 213 fatalities recorded in the Province's mining industry in the decade 1965-74. The frequency of fatalities per man-hours worked in logging, sawmilling and veneer milling was found to be twice as high. (See Report of the Royal Commission p. 131). The Legislature obviously shared the conclusion of the Royal Commission that existing health and safety laws and procedures were inadequate to prevent what had become an unacceptably high toll of industrial fatalities and injuries in the Province. The Report, which became the impetus for reform legislation, is notable for its depth of research and the strength of its conviction that the most important thing to come out of any production facility is the production worker himself.
The concerns expressed by the Royal Commission were by no menas special to Ontario. In 1970 a United States Government study released some alarming statistics. It disclosed that by 1970, 14,500 persons died annually in industrial accidents. It reported that each year an estimated 2.2 million workers suffered disabling injuries of some degree while at work. Perhaps what is most alarming is that the rate of industrial accidents was found to have increased by 20 per cent between 1958 and 1970. That is apart from the accelerating figures for the detection of occupational disease. (See, U.S. Congress, Senate S. Rept. 1282,91st. Cong., 2d Sess., pp. 2,3,; reprinted in [1970] U.S.C. Cong & AD. News 5177, 5178-79).
Apart from taking a social and human toll industrial accidents have a substantial impact on the economy as well. The loss of work caused by industrial accidents has been estimated as 10 times greater than the loss caused by strikes. In 1970 industrial accidents were estimated to be costing the American economy in excess of 8 billion dollars annually, 1.5 billion of which represents lost wages. (116 Cong. Rec. 38613 (1970); U.S. Congress, Senate, S. Rept. 1282, 91st Cong., 2d Sess, pp.2). A growing awareness of these statistics, increased pressure from organized labour and a coal mining explosion in 1968 that killed 78 miners in West Virginia gave the final impetus for comprehensive reform legislation in the United States. The result was the Occupational Safety and Health Act of 1970 (21 U.S.C. 651-678 (as amended)). The new legislation (generally referred to as OS HA) gives any employee with grounds to believe his working conditions are unsafe the right to request an inspection of the work place, the right to participate in a "walk around" with an OSHA inspector and the right to invoke the protections of the Act without recrimination by his employer. (See, generally, Feirman, The Occupational Safety and Health Act. 1970: The Right to Refuse Work Under Hazardous Conditions, [1979] Wash. U.L.Q. 571).
For the first ten years, while the right to call for an inspection under OSHA was clear, the right of employees to refuse to work in unsafe conditions was uncertain. The Act itself does not expressly provide that an employee can refuse to work where there are reasonable grounds to believe it is unsafe to do so. Pursuant to his authority to make regulations under the Act, the Secretary of Labour published an interpretive regulation stating, in effect, that an employee may refuse to work if he reasonably and in good faith concludes that he is subjected to a real risk of death or injury, that there is not enough time to eliminate the danger through normal enforcement procedures and where the employee cannot obtain a correction of the hazardous condition from his employer. According to the Secretary of Labour, an employee refusing to work in those circumstances would be protected from any reprisal at the hands of his employer. Lower courts, however, differed in their view of the legality of that regulation and the statute become more and more criticized. Without a right to self-help employees could continue to be faced with a choice between working in unsafe conditions and losing their jobs. (See Atleson, Thre2ts to Health and Safety: Employees Self-Help Under the NLRA (1975), 59 Minn. L. Rev. 647; Blumrosen, Ackerman Kligerman, VanSchaick and Sheehy, Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions (1976), 64 Calif. L. Rev. 702; Comment — A Right under OSHA to Refuse Safe Work or a Hobson's Choice of Safety or Job? (1979), (Baltimore L. Rev. 519). Finally, in a recent landmark decision, the Supreme Court of the United States upheld the validity of the regulation, thus insuring the right of employees under OSHA to refuse to perform unsafe work when there is no alternative available to them, (see Whirlpool Corp. v. Marshall, 9 OSHA 39, p. 915)). The legislative and judicial history culminating in the Whirlpool decision is a vivid chronicle of the importance of the statutory right of employees to refuse to perform unsafe work without fear of reprisal.
In Ontario the right to refuse unsafe work was viewed by the Legislature as sufficiently important to be incorporated as an express provision in The Employees' Health and Safety Act. It has been continued in successor legislation, The Occupational Health and Safety Act, 1978, S .0. 1978, c. 83, ss. 23, 24. Given the history and purpose of the statutory right of workers to refuse to perform unsafe work, the provisions of section 2 of The Employees' Health and Safety Act, must be given a liberal and constructive interpretation that is consistent with the intention of the legislation.
In this case the company submits on several grounds that the section does not apply to protect the grievors. First, it argues that the employees did not have reasonable grounds to believe the lea kin the roof of the furnace rendered their workplace unsafe. It also argues that the grievors were not acting within the protection of the Act because they reacted as a group and not individually; counsel for the company described their joint action as being tantamount to an unlawful strike. The company further submits that the complaint should be dismissed because the grievors did not testify. Counsel for the company submits that because the grievors did not come forward to give evidence to prove that they had concern for their safety at the time they refused to work this Board should draw an inference adverse to the grievors and conclude that they refused to work for some reason other than reasonable concern for their own safety.
It is understandable for a company to be concerned that a group of employees, in the guise of invoking safety legislation, might refuse to work for reasons in fact unrelated to their own safety. In irresponsible hands any right can be abused. Moreover, safety issues, like the one in the instant case, can involve technical factors better understood by management. It is therefore not unnatural for a company to sometimes wonder whether a refusal to work by a group of employees is in fact a gesture of strength that is more impetuous than cautious and to suspect that it is substantially inspired by other concerns.
Another natural concern for any company in the face of the right of employees to refuse unsafe work is the element of surprise. One of the things that a company expects in any collective bargaining setting is a freedom from work stoppages during the life of a collective agreement. The cost to the company both in terms of lost production and expenses incurred to remedy an unsafe condition may come without warning and require an unwelcome departure from established financial planning and a company's own schedule for capital and safety improvements. Moreover, any right of groups of employees to refuse to work because of health and safety concerns over such factors as the location or design of a plant, the choice or design of tools and equipment, the kind of materials used and the overall method of production tends to make negotiable matters previously within the exclusive discretion of management. Given all of these factors it is not unnatural for employers generally to have reservations about the motives for any concerted action in the name of safety. (See, generally, Ison, Occupational Health and Wildcat Strikes, supra).
As valid as those general concerns may be, this Board must not construe the statutory right to refuse unsafe work so narrowly as to unduly discourage its legitimate use. In fact valid employee complaints can and do arise in a group setting. When employees do share a concern a group response may be natural. And, as the instant case illustrates, different groups, like different individuals, may react differently to the same circumstances. By the very nature of the employment relationship, it often takes courage to confront an employer. It would, therefore, be unduly restrictive and unrealistic to construe the statutory right to refuse unsafe work as being unavailable to employees who share a concern and act with a common purpose.
The rights confered by the Act are not unlimited. Nothing, for example, permits employees who are not themselves involved in a perceived safety hazard the right to down their tools out of sympathy for another employee whom they think is confronted with unsafe work. Before any employee can invoke the right to refuse work he must have reasonable grounds to believe that he himself is in jeopardy or that he will place another employee in jeopardy if he proceeds to work. The question must always be whether the employees refusing to work, whether individually or as a group, each have sufficiently close relationship to a perceived hazard that they are themselves in peril or that they will put another employee in peril by performing their work. Moreover, the refusal to work protected by the statute is not a general withholding of services. An employee who protests that working conditions on a particular job are unsafe can't refuse to perform alternative work that isn't unsafe.
The requirement that an employee have "reasonable cause to believe" that there is danger imposes an objective standard by which to test the employee's action. The Act does not, by the use of the words "reasonable cause", legislate different standards of protection for the squeamish and the intrepid. Different employees within the same work place may have different views of what constitutes an acceptable risk. Likewise, strangers to a particular trade or industry might view with alarm situations that are not seen as hazardous by the people who work in that field on an every day basis. On a complaint such as this, therefore, in considering whether an employee had reasonable cause to refuse to work in a given situation, this Board must ask itself whether the average employee at the work place, having regard to his general training and experience, would, exercising normal and honest judgement, have reason to believe that the circumstances presented an unacceptable degree of hazard to himself or to another employee.
The ability of an employee to invoke the right to refuse work does not depend on whether there is in fact any danger. The question is whether at the time an employee refuses to perform his work he has reasonable cause to believe that it is unsafe to do so. The fact that it may later be shown that there was no real danger at the time an employee refused to work doesn't mean 1 hat the employee was wrong in exercising his right under the Act. The events must be assessed in the light of knowledge available at the time that the employee refused to work.
We turn to apply the foregoing principles to the evidence before the Board. We look first to the merits of the employees' refusal when they arrived at work. We then look to whether they could act as a group. We next examine whether they could justify their refusal after the explanations cf management, and lastly whether they could continue to do so following the Inspector's visit. Finally, we will examine the company's allegation that by not testifying the grievors failed to rebut an inference that they were acting out of an ulterior motive.
When the grievors left the refinery at the end of their shift on the morning of Sunday, September 2, 1979, there was a visible leak of flame in the roof of anode furnace No. I. The masons had been called and repairs were scheduled for that morning. When they returned to work at midnight the problem was not solved. The temporary patch put in by the masons did not work. A three foot square area of the furnace was a red glowing mass, covered with copper sheets and refrisel cloth that prevented any clear view of the extent of the damage. Flames between six and eight inches in height were escaping from the crevices in the debris. The hanging rods above the furnace were red hot and one of the vital tie-rods supporting the furnace roof had a red glow. While Mr. Prior believed that the glow was a reflection of light from the patch beneath, he acknowledged that it appeared as though it might be red hot. By Mr. Prior's own evidence, the roof had flattened in the area of the hole and was, overall, "not a good looking roof." Faced with those facts alone the Board is of the opinion that the employees had cause to wonder about the safety of the furnace.
In addition to what they saw, however, the employees were told that the tapper on the previous shift had refused to work out of fear that the roof could cave in and cause a surge of molten metal at the tap-hole. The employees were also informed that two engineers from the Ministry of Labour had come to the plant on the previous shift and had issued an order that there must be two tappers on duty until the casting cycle was complete. It was reasonable for the employees to assume that government engineers would not have made the order unless they considered the condition of the roof to be precarious.
The order itself was puzzling and would cause any reasonable employee further concern. If there was a genuine risk of a cave in, or if enough brick could fall from the roof into the bath to cause a sudden surge of molten metal at the tap-hole, there was little justification for putting two men instead of one at the area of highest risk.
On the basis of these facts the Board is satisfied that at the beginning of their shift the grievors had reasonable cause to believe that it would be unsafe for them to work.
Were they entitled to act as a group in exercising their refusal to work? Each and every one of them, on the evidence before the Board, had reasonable grounds to be concerned for his own safety. If any substantial surge should occur at the tap-hole, so that the tapper was injured and unable to control the flow of the molten copper, the risk of an overflow of the metal onto the refinery floor where it might come into contact with water posed a genuine risk to the safety to all members of the crew. There were, in all of the circumstances, reasonable grounds to believe that there was a substantial risk to every one of the grievors. On that basis, out of concern of their own safety, they were therefore entitled to invoke the protection of the Act either collectively or individually.
Each of them was also entitled to do so out of fear of jeopardizing the safety of others if he proceeded with his own work. If, for example, the ladle tender or wheelman proceeded with their work they would put the tapper in jeopardy because they could only work if he was stationed at the tap hole, an area they all had reasonable grounds to believe was especially perilous. Likewise, if the tapper worked and should be unable to control the flow of the molten copper he would jeopardize the safety of all the other employees on the crew as they were downstream from him. Therefore each employee was further entitled to refuse to work out of a reasonable fear that to engage in the casting operation would be likely to endanger other employees.
We consider next whether the employees could continue to refuse to work after they received the explanation and advice of management. The employees did not have the experience of Mr. Cooper and Mr. Prior. They could not be expected to have the same faith in the solidity of the sprung-arch roof that their more knowledgeable supervisors did. Nor could they be expected to know, as Mr. Prior apparently knew, that the specific gravity of copper was such that bricks falling into the molten bath should not cause any serious wave action.
The fact that Cooper and Prior were finally proven right doesn't diminish the merits of the grievors' complaint. That the furnace roof ultimately proved to be solid in the area of the leaky patch only shows the company turned out to be right after all. It cannot be the basis for an inference that the employees could not have reasonably believed that the company was wrong. At the time the employees refused to work no one knew what was under the red-hot metallic sheets and cloth. In the circumstances the Board concludes that their fear that it was a precarious expanse of roof was reasonable. The Board is satisfied, therefore, that the employees had reasonable grounds to fear for their safety after the inspection and explanation of their supervisors.
Were the grievors still justified in their refusal to work after their encounter with Mr. Tyynela, the safety inspector, and the confirmation of his order? The evidence establishes that Mr. Tyynela met at length with the employees on the midnight shift. This he did after he inspected the roof of the furnace in the presence of their two representatives and the company's supervisors. Mr. Tyynela honestly explained to the employees that he had no personal experience in anode furnaces. He made it clear that he was relying on the expertise of the company representatives with whom he had spoken. In other words, the inspector's opinion, albeit the opinion of a neutral party, was not the opinion of a neutral expert.
It also appears that while he carefully inquired of the company supervisors what their experience was, he did not ascertain from the company the fact, confirmed in evidence, that it was possible to cool down the furnace, temporarily repair the roof and resume casting within four hours. An inspector with the authority to make a remedial order must, in determining the level of acceptable risk, explore the obvious question, "Acceptable in the face of what alternative, and at what cost?". This, according to Inco's evidence, he did not do. The employees cannot, in all the circumstances, be faulted for being skeptical of an official opinion that appeared to be an adoption of the company's view.
Their skepticism could only be heightened by their perception of the Inspector's order. While it might have been made with the good intention of comforting Mr. Langlois, in fact it was likely to give other employees the impression that the government engineers felt there was a danger. Viewed in that way, it became more alarming because it appeared to place two employees rather than one in the area of greatest jeopardy, next to the tap-hole. Subject, therefore, to the argument of the company respecting the good faith of the employees' action, the issue next to be addressed, the Board must find that after the Inspector's visit the grievors continued to have reasonable cause to believe that anode furnace No. I was unsafe.
73 The employees did not testify as to their own thoughts and feelings at the time they dealt with either their supervisors or the safety inspector. In his argument, counsel for the company suggested that there might have been ulterior motives for the refusal of the employees, as a group, to cast out the furnace. As the Board has noted, group action is not in itself unlawful under the Act. But that does not mean that a group refusal, any less than an individual's refusal to work, should not be scrutinized for its bona fides. As the procedures under The Employees' Health and Safety Act unfold in a given incident, there may be a growing onus on employees to establish that they had reasonable cause to fear for their safety. Where at the time of the incident the evidence establishes that the employer has given a credible explanation to show that the work place is safe, the employees may be required at the hearing to show that they still had cause to fear for their safety. That onus may increase after the employees have viewed the hazard with a safety inspector and the engineer has expressed his objective opinion that there is no immediate danger. This was expressed by the Board in Canadian Gypsum, [1978] OLRB Rep. Oct. 897 at p. 902, as follows:
"The right of an employee to refuse work under Bill 139 is not an absolute right. It is predicated upon "reasonable cause to believe" that the conditions specified in Section 2 of the Act prevail. If an employee cannot establish that he has "reasonable cause to believe" that the conditions specified in Section 2 prevail, or if he does have "reasonable cause to believe' but refuses to work for some other reason he is not acting in compliance with the Act and is not protected by the Act. The procedure set out ii Section 3 is one which is purposely designed to focus the attention of the parties on the immediate problem, to facilitate a resolution of the problem, and, in the event the employee continues his refusal to work, to test the reasonableness of his belief that the conditions specified in Section 2 exists. If the employer, after investigating, denies that there is any validity to the employee's belief or takes corrective action, it will be more difficult for the employee to establish that he has "reasonable cause to believe' that conditions exists which permit him to refuse to work. If an employee establishes his right to refuse to work following the employer's investigation, the matter must be investigated by an inspector who must make a decision as to whether the conditions set-out in Section 2 of the Act are present. An employee who continues to refuse to work in the face of art investigation and the decision by a neutral expert that these conditions do not exist, must meet the substantial onus of establishing that he has reasonable cause to believe otherwise and is entitled to the protection of the Act."
When in a hearing before the Board it appears on the strength of the company's evidence that an employee did not have reasonable grounds to believe conditions were unsafe, or that he refused to work for other reasons, the employee may be required to come forward and show that he had reasonable grounds and did not act out of some other motive. There is no doubt that where there is, at the conclusion of the company's case, substantial evidence from which it can be inferred that employees in fact refused to work for reasons unrelated to safety, the Board may, absent testimony from the grievors, conclude that they did not believe themselves to be in peril. The employees' belief can, in those circumstances, be a relevant and telling factor.
Under the Act, however, an employee's belief is not the ultimate issue. It is not a precondition to the protection of the Act that an employee first be convinced that he is himself in a situation of peril. The statute doesn't require that an employee believe he is in danger, but only that he have reasonable cause to think so. In some cases that distinction will be important. Take, for example, a group of employees faced with a potential danger. Several of them are convinced that the risk is too great. One of them, however, doesn't agree. Having cause to think it unsafe, in fact he doesn't believe it is. As the Act is framed that employee may nevertheless refuse to work. He may refer to the judgement of his fellows out of an abundance of caution, knowing that there are reasonable grounds to disagree with his own opinion. To be protected by the statute, therefore, an employee need not necessarily come forward and prove his personal belief.
In this case the evidence produced by the company gives an ample picture of the circumstances that confronted the employees. There is, moreover, nothing in that evidence to suggest that the employees were acting out of some ulterior motive or to further any purpose other than their own safety. Mr. Cooper described how agitated the employees were. Mr. Prior's testimony was that he was himself convinced, and had no reason to doubt, that fear for their safety was the only thing that motivated the grievors in their refusal to work. In light of the company’s own evidence, the Board can give little weight to the speculative argument of its counsel that there might have been some other reasons behind the employees' action. Nor can we accept that on the strength of the evidence there was some affirmative obligation on the employees to testify in that regard.
In light of the evidence, the Board is satisfied that at approximately 4:00 a.m. on September 3, 1979, after the Inspector's visit, when the grievors continued to refuse to perform the casting operation, they had reasonable cause to believe that their work place was unsafe. Their refusal to work therefore was in compliance with The Employees Health and Safety Act. There is nothing in the evidence to suggest that the company sends its employees home when casting is delayed for a few hours while a temporary patch is made in the furnace roof. There is therefore no reason to conclude that the employees would have lost any wages if Inco had responded to their concerns and had patched the roof during the midnight shift. Inco was, therefore, not entitled either to suspend them for the balance of the shift or to register any disciplinary notation against their record.
For all the foregoing reasons the Board orders that Inco compensate the grievors, without loss of benefits, for the hours of work of which they were deprived and that it remove from their records any disciplinary notations resulting from their refusal to perform work on the midnight shift of September 3, 1979.
The Board shall remain seized of this complaint in the event that the parties are unable to agree as to the interpretation or implementation of this decision.
DECISION OF BOARD MEMBER J. A. RONSON:
The decision of Mr. Ronson will follow.