[1980] OLRB Rep. June 836
1499-70-U Remi Bonin, David Charette, Robert McKerral, Complainants, v. Inco Metals Co., Respondent.
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members H. J. F. Ade and H. Simon.
APPEARANCES: N. Carriere for the complainants; H. Beresford for the respondent.
DECISION OF THE BOARD; June 3, 1980
This is a complaint alleging that the respondent acted in contravention of section 9(1) of The Employees' Health and Safety Act, S.O. 1976, c. 79 on July 22, 1979 in that the respondent disciplined the complainants for their refusal to work on July 21, 1979.
The incident giving rise to the discipline occurred at the respondent's Copper Cliff Smelter where the complainants were then employed in the Converter Dept. as "punchers". The Converter Dept. consists of a number of converters, some of which are nickel converters and some of which are copper converters. The function performed is that of refining and purifying the metals through the introduction of heat and oxygen-enriched air, which latter is fed, under pressure, into the molten metal through pipes known as "tuyeres". These tuyeres are required to be kept clear of metal encrustation during the cycle and this is accomplished by the punchers utilizing a five-foot steel bar and a six-pound hammer. Individual converters are 35 feet and 45 feet in length and 13 feet or 15 feet in diameter: copper converters each have 42 tuyeres whereas nickel converters each have 32 tuyeres. The complainants were working on July 21, 1979 on converter #13 which is normally a nickel converter but which was then being used for refining copper because of production back-ups resulting from a preceding legal strike. The evidence was that converter #13 had been used for this purpose from time to time previous to and subsequent to July 21, 1979.
The refining process itself consists of two phases. In the first phase reagents are introduced to produce a ferro-silicate slag which is skimmed off leaving a copper sulfide. During this phase the converter is manned by an operator known as a "skimmer" and up to two punchers. During this phase the reaming out of tuyeres is accomplished, in the main, by use of automatic punching machines and manual punching is resorted to only if there is a problem. In the second phase of the process, the operation starts to produce copper and no automatic punching machines are used as the punching tends to be harder and beyond the capacity of the machines. During this second phase it is normal to assign four manual punchers.
Manual punchers work on a platform and during punching would be within three feet of the converter shell. The evidence was that internal converter temperatures are 2250 F-2500 F and, that temperatures outside the converter in the working area generally run 100 F-200 F above ambient temperatures. On regular copper converters there are two fans located at each end of the puncher's platform to move air across the tuyere area. Converter #13, being a regular nickel converter, was equipped only with a fan at one end of the platform. The air moved by fans comes from an adjoining building and would be at regular ambient temperatures.
On July 2 1st, converter #13 had a regular fan at one end of the platform and had additional improvised air movement equipment at the other hand of the platform, consisting of an air-mover and also a high pressure hose. The temperature of air coming from the air-mover was about 200 F below ambient temperatures, and the air from the air-hose was at ambient temperatures. Ambient air temperatures and humidity at the Sudbury Airport on July 21st were established as:
C F July 21, 1979 Temp. Temp. Humidity 4:00 p.m. 28 82.4 40 5:00 p.m. 29 84.2 35 6:00 p.m. 27 80.6 39 7:00 p.m. 27 80.6 39 8:00 p.m. 26 78.8 45 9:00 p.m. 24 75.2 50 10:00 p.m. 22 71.6 60 11:00p.m. 21 70.00 64 12:00 Midnight 20 68.00 64 1:00 a.m. 19 66.2 68 2:00 a.m. 18 64.4 68
No specific evidence was introduced as to actual temperatures prevailing in the immediate work area of the complainants or in the work areas at other converters on the day in question, although Peter Jarus, the foreman, testified that in his judgment conditions were the same at all converters. It was stated that converter #13 had been previously used for copper for a period of 4-1/2 years, that some changes had been made to the converter in 1976 and, since that time, there have never been two fans on that converter. He also testified that converter #13 had been used for copper in previous summers.
The complainants were assigned to the second shift, commencing at 4:00 p.m. on July 21st. At the start of the shift Mr. McKerral and Mr. Bonin were assigned as punchers on converter #13 along with Messrs. Velez and Lorgi (who are not parties to this proceeding). It should be noted that at the start of this shift the converter was still in its first phase which would normally have resulted in two men being assigned as punchers but, because the automatic punching machines had been removed by the previous shift and manual punching employed, four punchers were required to be assigned. Some time between 5:30 p.m. and 6:00 p.m. two additional punchers (Messrs. Charette and Healey) had been assigned to converter #13. The additional punchers were re-assigned from another converter which was not then operating. The evidence is unclear as to whether such re-assignment came about as a result of a specific request by Bonin to Peter Jarus, the foreman, or whether Jarus made the decision in view of the additional work load due to the condition of the process and the absence of a second fan. The evidence is clear that during the period from 4:00 p.m. to 7:50 p.m. (at which time converter #13 was taken out production due to other process problems) both Bonin and McKerral (who were at the end of the platform at which there was not fan) had discussions with Jarus regarding the heat and the lack of a fan. Bonin suggested that there was a spare fan available on another converter which Jarus undertook to look into and Jarus endeavoured to do some re-positioning of the air-mover and of the air-hose to provide a better flow of air to the positions where McKerral and Bonin were working.
Throughout the period from 4:00 p.m. to 7:50 p.m., the number of punchers present on the platform of converter #13 varied. At the start of the shift there were four punchers (as we have noted above), one of whom, Lorgi, had indicated to Jarus at the start of the shift that he was not feeling well and would like to go home but was prevailed upon to try and see if he could work. The four punchers originally assigned were augmented by Charette and Healey, who arrived some time between 5:30 p.m. and 6:00 p.m. It appears Velez then went to lunch around 6:25 p.m. and according to Bonin and McKerral, Lorgi left the platform at the same time. Jarus testified that it was around 8:00 p.m. that he gave Lorgi permission to go home and we conclude that between 6:25 p.m. and 8:00 p.m. Lorgi was on the premises but not on the platform. Charette suffered a burn at 6:35 p.m. requiring him to report to First Aid, thereby reducing the puncher complement to three, and at 7:15p.m. Healey suffered a burn, also requiring his reporting to First Aid. The active puncher complement then continued at two for a short period until Velez returned from lunch shortly after Healey's injury. Both McKerral and Bonin testified that neither Healey nor Charette returned to the platform before the converter was shut down at 7:50 p.m., although the First Aid attendant who treated them testified that neither injury in his judgment required a modified work slip recommending placement on other than regular work and he had assumed they would return to work, which would have been the usual procedure.
During the period from 7:50 p.m. to 9:30 p.m. converter#13 was shut down and the punching crew (except for Lorgi) were in the lunchroom. At 9:30 p.m. Jarus went to the lunchroom and explained that he had investigated securing a fan and had been advised by the electrician that it would require the running of a cable which would have to be done on the day shift next day. Jarus then asked them to return to work, and McKerral raised the question, what if we don't go back" to which Jarus stated he implied that they had a choice to punch or go home. Jarus stated there were punchers from other crews in the lunchroom who had completed their work and there was a certain amount of "razzing" going on and that he interpreted McKerral's question against this background. Jarus states he then went to his office which adjoins the lunchroom. Shortly after, McKerral and Bonin came to his office with their lunch pails and stated that they chose to go home. Jarus stated that he then explained that on their return they would be penalized for refusing to work, to which they replied that "they understood". On cross-examination Jarus stated that he didn't inquire of McKerral and Bonin why they were leaving and that he could not recall anything being said about fans or about heat.
Jarus then returned to the lunchroom to see if the others had returned to work and found Charette and Healey still there. They both stated they were injured and should not have to go back to work. Jarus stated that he had no indication from First Aid that they should be placed on modified work and sent them back to the First Aid attendant to secure such slips. Wright, the First Aid attendant, testified that Healey and Charette again saw him and sought modified work slips. Wright informed them that in his opinion they were not justified and that it was "up to their foreman". In response to the question, "who has the final say as to whether an injured employee can do his normal work", Wright responded, "actually the employee does — that has always been the case". Wright stated that neither of them raised the question of heat as a reason for not wanting to work.
On Healey and Charette's return to Jarus' office, Jarus stated that he asked them to return to work. According to Jarus, Healey stated he was going home and "would get paid for it anyway". Jarus stated they would be penalized on their return for refusing to do assigned work and they departed. Jarus stated that neither one of them raised the issue of heat in connection with their refusal to work, nor gave any reason other than their injuries.
Jarus testified that at 9:30 p.m. Velez did return to the punching platform as did a replacement for Lorgi which Jarus arranged.
Bonin's testimony regarding the 9:30 p.m. incident is that Jarus said "#13 punchers go back up and start to punch because the shell is going back on the line". Bonin then asked about the fan and told Jarus that he wouldn't go up unless the fan was installed because it was too hot back there. Bonin stated that Jarus then said there would be no fan because the electrician said it would take a whole shift to install it, to which McKerral and Bonin responded that they were not going back. Jarus is said to have stated, "you’ve got a choice, either punch or go home", so McKerral and Bonin elected to leave.
There was some dispute as to whether in the lunchroom encounter Jarus had sent Charette and Healey to First Aid prior to telling the crew to return to work. We are satisfied that Charette and Healey were present at the time of the instruction to return to work and that their referral to First Aid occurred as outlined in Jarus' evidence. There is also the conflict as to whether Jarus explained about the fan prior to ordering the men back to work or whether the sequence of events was as testified to by Bonin and McKerral. Regardless of the sequencing, we are satisfied that in the lunchroom discussion Bonin and McKerral made known their position regarding the heat and the lack of a fan. Jarus stated that at no time during the events of July 21st did he interpret the complaints as being based on a claim of unsafe conditions, and that no one mentioned the word "safety".
Jarus testified that converter #13 was not in fact put back into operation that night but that it was operative on the next shift, and that the fan was not installed until July 23rd. (In fact the installation was not completed until July 25th.) Jarus left a note for the foreman with whom the complainants were scheduled to work next day, outlining what had happened and recommending the complainants be given disciplinary notices on his behalf. Such notices were issued on July 22nd based on their refusal to work.
Lindsay, superintendent of converters, first learned of the events of July 21st when he came into work in the morning of July 23rd and saw copies of the disciplinary notices issued to McKerral, Charette and Bonin. Lindsay made inquiries of two general foremen who informed him that the converter #13 operation had been "screwed up" in the Saturday day shift, that only one fan was hooked up and, that part of the problem seemed to stem from insufficient fan capacity. Lindsay decided to interview the employees individually. He testified that both McKerral and Bonin in effect said that when they had come to work the converter had been left in a "hell of a mess" and they had to do extra work because of the previous shift's bad operating practices. Lindsay states that Bonin and McKerral made some comment about the lack of a fan, but neither made reference to heat until after Lindsay introduced the topic, and no one made any reference to it being too hot to work. Lindsay stated that at no time was any comment made about safety, and that it was not until the second step of the grievance procedure that the company became aware that the refusal to work was being justified on safety grounds.
The first question to which the Board must address itself is whether the refusal of the complainants to work on July 21, 1979 was an exercise of the right created by section 2 of the Act which provides:
"Where an employee in a work place was 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 Act, 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."
The question here is whether the employees had reasonable cause to believe that their work place was unsafe. An affirmative answer to that question establishes that a refusal to work based on that belief is a refusal in compliance with the Act.
- Section 3 of the Act provides as follows:
"(1) 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 use 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 presence 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.
(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."
In the instant case the prescribed investigations by the employer did not take place and neither was an appropriate inspector or engineer notified. The employer in this case explains the non-implementation of section 3 on the grounds that he had no reason to believe at the time that the refusal of employees to work was based on the safety of the work place.
- Prior to the enactment of the present legislation, an employee covered by a collective agreement which contained a just cause provision for discipline who was disciplined for refusal to perform work based on an apprehended danger to health or physical well-being, was required, in contesting such discipline to establish that his refusal to work was justified. The arbitral jurisprudence looks to the reasonableness of the apprehension of danger as establishing justification, and has established a number of criteria by which such reasonableness can be tested. Such criteria are well-summarized in Re Steel Co. of Canada Ltd. and United Steelworkers, Local JOOS, S L.A.C. (2d) 315, at page 318 where it is said:
"From these we take the following propositions against which to test the grievor' s evidence and argument. These are: First, did he honestly believe his health or well-being was endangered? Secondly, did he communicate this belief to his supervisor in a reasonable and adequate manner? Thirdly, was his belief reasonable in the circumstances? Fourthly, was the danger sufficiently serious to justify the particular action he took?
The respondent argues that the Board, in determining whether under section 2 of the Act an employee had "reasonable cause to believe" that the work place was unsafe, should be guided by these criteria. In our view, the first three of the above outlined criteria relates to the holding of a reasonable belief of apprehended danger as does section 2 of the Act. The criteria contain a logical persuasiveness of approach which can be of assistance in arriving at a conclusion as to whether there has been, initially, an exercise of a section 2 right. The fourth enumerated criterion, in our view, goes to the question of whether objectively, despite the holding of a reasonable belief of apprehended danger, the circumstances justified an employee refusal to work. This is the question to which section 3 of the Act is addressed by prescribing certain steps to be taken following the initial employee refusal and prompt informing of the employer. The steps prescribed in section 3 to be taken following the first refusal assure the injection of evaluations, additional to that of the employee, as well as the potential of physical changes in the condition complained of, such as may cause the testing of the employee's continued belief against a changed set of circumstances to be made. In our view, considering the general thrust of the legislation, we are of the opinion that an employee can be found to be exercising his section 2 right under the Act in his refusal to work despite the fact that further evaluation of the situation can lead to a more objective conclusion that there is not in fact a potential of danger. This is in keeping with the object of the Act which is to preclude employee injury. In the instant case, we are concerned only with the circumstances existing at the time of the actual refusal: the employer never implemented the section 3 steps because, in his view, there was nothing in the employees' complaints which caused or ought to have caused him to conclude that the employees were apprehensive of the safety of the work place.
There may be conditions in the work place, or in connection with a machine, which have an obvious potential for endangering employees that to merely draw attention to the existence of such condition makes obvious the underlying apprehension of the employee for his safety. There may also be conditions in the work place which are part of the normal and accepted safe working environment but which, when altered, in degree or quality beyond some point, may in fact endanger the health or well-being of employees. It is this latter category with which we are here concerned insofar as the complainants McKerral and Bonin are concerned. (We shall deal separately with the complainant Charette later.) In essence, the complainants state that they refused to work because of unusual heat and the lack of a fan combined with abnormal individual work loads arising from non-standard process conditions, and that their reasons were communicated to their supervisor. They argue that these conditions gave them reasonable cause to believe that the work place was unsafe.
We accept the fact that July 21st was a hot summer day and that the ambient temperatures would impact on the work place. Those temperatures reached a high of 84.20 F at 5:00 p.m. that day and fell off steadily to 71.60 F at 10:00 p.m. The temperature was in between 75.20 F and 71.60 F at 9:30 p.m. when the complainants refused to work. We note that in the Smelting Dept. there were nickel converter crews at work and there was no evidence of work interruptions or complaints about the heat amongst those crews despite the opinion of Jarus that he found conditions to be comparable on all converters. We must also note that while three other employees (Lorgi, Healey and Charette) who worked on converter #13 did not return to work at 9:30 p.m., their stated reasons for not doing so did not relate to the heat condition. Velez, the other member of the converter crew, did work through the first half of the shift and did return to the platform at 9:30 p.m. as instructed. Additionally, we conclude from the evidence that over the years it has been very rare — if indeed it ever happened — for smelter punchers to cease work because of heat conditions.
The lack of a fan at the end of the platform at which Bonin and McKerral worked was not an abnormal operating condition. The evidence was that revisions were made to converter #13 in 1976 and that since that time the converter has not been equipped with a second fan. The evidence also was that converter #13 had been used for copper conversion during the summer months over that period. Counter-balancing the lack of a fan were two pieces of equipment, an air-mover and a high pressure hose. According to the evidence, the air-mover would have an air displacement capacity relatively equal to that of a fan and, additionally, would provide a cooling effect of about 200F, whereas the fan would provide no cooling effect. The air-hose provided additional air displacement capacity. Nonetheless, it must be noted that the foreman, Jarus, did make reasonable efforts to secure the installation of a second fan which could not be accomplished on that shift.
In regard to the condition of the process and the manning of the operation at converter #13 on July 2 1st, there is no doubt that the work was more arduous than normal, and this too was the subject of discussion between the complainants and Jarus during the first half of the shift. As a result of those discussions another two employees were assigned to the punching operation, although it must be noted that the actual size of the crew at work varied over the period.
The refusal to return to work at 9:30 p.m. was stated to be because it was too hot to work without a fan. However, in cross-examination, Bonin conceded that despite the absence of a fan he would have returned to work at 9:30 p.m. had he been aware that Jarus had already arranged a replacement for Lorgi who had gone home ill. In the light of the foregoing, the events between the start of the shift (4:00 p.m.) and the time the process was shut down and the employees went to the lunchroom (7:50 p.m.) do not lead the Board to conclude that the complainants had a sense of potential danger to them and they did not have reasonable cause to believe that the work place was unsafe for them to work. There is, however, one other matter to be considered, and that is whether there was some additional factors bearing particularly on the safety of the complainants, and which did not exist for other employees in the same or comparable work environment.
It is generally recognized that heat and humidity impact unequally on individuals and indeed that similar conditions of heat and humidity impact differently on the same individual on different occasions. The subjective view of the individual in respect to his physical well-being, in these circumstances, may well be a factor in determining whether he had reasonable cause to believe that the work place was unsafe to him.
Both Bonin and McKerral gave testimony that they were feeling tired, weak, (and in Bonin's case, dizzy) and that this was the underlying reason for refusing to return to the work place. Mr. Rocco Tummino, called by the complainants, had been a puncher for 7-1/2 years and recalled some years back when he himself was feeling dizzy, sat on a bench for a period and apparently fainted. He also testified that he has experienced other punchers complaining of dizziness and "told them to stay out of the area, have a short rest and come back". The question was put to Tummino, "if a puncher is feeling dizzy does he sit down?", to which he responded, "Yes, get out of the area. A puncher should know that". We do not view this testimony in conflict with that of Jarus, the foreman, who testified that in his over twenty years experience, he had no knowledge of a puncher having to go home because of the heat; nor do we view it in conflict with the testimony of Wright, the First Aid attendant for the past 2-1 / 2 years, who testified that in that time he had never had occasion to treat anyone for complications resulting from punching while it was hot, nor had he ever seen a puncher who was refusing to work because of the heat. Wright also testified that he himself had been employed as a puncher for 1-1/2 years and that the conditions in summer heat can be "rough" and that while he had complained about the heat he had never refused to punch.
We conclude that "dizziness" is a known phenomenon in punching and that any puncher so affected should sit down and rest and that Bonin was well aware of this procedure, and that such procedure is a self-help remedy designed to preclude the individual workman working under conditions which, because of his individual physical condition, make it unsafe for him to continue, even though the conditions of the work place is not similarly affecting other employees. In a given case such conditions could warrant a refusal to work, but in the instant case it did not lead to such a refusal up to 7:50 p.m., not did it assume such proportions in the minds of the complainants as to cause them to mention it to Jarus over that period. Further, it was not identified as an underlying reason for the refusal to work at 9:30 p.m. that they had been absent from their work stations for one hour and forty minutes, and in repeating their complaint about the absence of a fan and the heat that they were obviously relying on their experiences up to 7:50 p.m. The Board can only conclude that there was not, at the time of the refusal, present in the minds of the complainants an apprehension of their physical well-being being endangered, and that the testimony is more in the nature of a rationalized excuse after the event.
This conclusion that the refusal to work was based on factors apart from the safety of the work place, is supported by the evidence that the first time the company became aware that there was a reliance on unsafe working conditions as a justification for the refusal was at the second step of the grievance procedure. It was clear to the Board that the complainants at the start of their shift on July 21st were quite upset by the production mess they had inherited from the preceding shift, and particularly so in that it was going to require continuous hand-punching by them throughout their shift. This, together with the fact that they knew they were facing a short turn-around shift (i.e., to finish work at midnight on Saturday and to report for their next shift at 8:00 a.m. on Sunday), and the "razzing" in the lunchroom about having to return to work by crews who had then completed their assignments for the shift, could well have been the cumulative reasons for refusal to work.
The Board concludes, on all the evidence before it, that the complainants, Bonin and McKerral, did not have reasonable cause to believe that the work place was unsafe for them to work in, and that therefore their refusal to work was not an act in compliance with the legislation. The complaints are dismissed.
We turn to the complainant Charette. According to Wright, First Aid attendant, Charette was seen by him at 6:45 p.m. on July 21st at which time Charette brought with him a routine inter-company form identifying that he had suffered a burn to the neck while punching on converter #13 as a result of hot scrap flying off his punching bar and down the back of his neck. Wright states that he talked with Charette about the injury (which in Wright's view was minor) and that Charette viewed the injury in a mirror. In Wright's judgment the injury was not such as to cause him to recommend modified work for Charette. Wright assumed that following the treatment Charette would return to work and Jarus testified that in the absence of a modified work recommendation, such would be the normal thing. However, McKerral and Bonin testified that Charette did not return to the punching platform following his injury.
Charette was present in the lunchroom at 9:30 p.m. when Jarus came to instruct the crew to return to work and was still there at about 9:35 p.m. when Jarus returned to the lunchroom to see if all the men had returned to work. Jarus asked why they were not at work and Charette said he was injured. Jarus stated that he did not have a modified work slip from First Aid and that Charette (and Healey who was in the same circumstance) would have to return to First Aid, and he gave them permission to go.
Wright, the First Aid attendant, testified that he saw Charette for the second time that night and that Charette asked for a modified work slip, but did not indicate in any way that his injury was bothering him. Wright advised that he did not recommend modified work and that Charette should speak to his shift boss. Wright stated that neither Charette nor Healey said anything at all about problems of heat or about safety. Wright received a subsequent phone call from Jarus inquiring as to whether Wright recommended modified work for Charette and Wright stated that he did not recommend it.
Jarus testified that he had called Wright (as related above) when Healey and Charette returned to his office from First Aid and that Wright told him that in his opinion Charette's injury was very minor and he could do regular duty. Jarus then asked Charette (and Healey) to return to work, to which Healey stated he would go home first and would get paid anyway: Jarus states Charette said nothing, and "sort-of" followed Healey out. Jarus states that he told them they would be penalized on return for refusing to do assigned work. Jarus testified that in this conversation neither Healey nor Charette raised any question about heat or any reason other than their injuries; Lindsay in his testimony states that both Healey and Charette told him when they were interviewed that "they didn't punch because of injuries". When Lindsay stated to Charette that his injury was a minor one, Charette said "the sweat would aggravate the burn and as such he chose to go home". Lindsay testified that during this interview Charette made no mention about heat or about safety.
Charette was not called to give evidence on his own behalf.
By any standard, it is difficult to infer that Charette had reasonable cause to believe that he held that belief at the time of his refusal. He never raised any aspect of the work place as relating to his refusal to work, but in his discussions with Wright and with Jarus (in the lunchroom) related his desire not to return to work due to his injury. This contention in the interview with Lindsay that the injury could have been aggravated by sweat, in the face of Wright's testimony, has a favour of post facto justification. We do not discount that there may be circumstances in a given case where a suffered injury might well form a basis for a reasonable belief that a work place is unsafe for the employee to work in, but this is not the case. We conclude that Charette had no reasonable cause to believe that the work place was unsafe for him and his refusal to work was not in compliance with the Act.
Charette's complaint is dismissed.