Ontario Labour Relations Board
[1981] OLRB Rep. November 1695
0470-81-OH Ted Nickarz, Complainant, v. Union Miniere Explorations and Mining Corporation, Respondent.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: Ted Nickarz for the complainant; A. D. G. Purdy and C. P. Moore for the respondent.
DECISION OF THE BOARD; November 13, 1981
Reasons for Decision
1This is a complaint under section 24 of the Occupational Health and Safety Act, R.S.O. 1980 c. 321. The complainant raises some twenty separate instances which he alleges are violations of his rights under the Occupational Health and Safety Act. At the hearing counsel for the respondent employer moved that the complaint be dismissed on the basis that the facts alleged, if proved, would not establish any violations of the complainant's rights under the Occupational Health and Safety Act.
3The facts cited in the material filed by the complainant are extensive. The material filed in support of the complaint includes entries in a diary which the complainant Mr. Nicharz kept from the first day of his employment as a carpenter at the respondent's mine at Pickle Lake. For the purposes of the preliminary motion the Board accepted as proved all of the facts stated in the voluminous materials filed by Mr. Nickarz. The Board then heard from Mr. Nicharz, in a process that extended over a half day of hearing, what it was in each incident which he alleged was in violation of his rights under the Act. This was necessary because it was less than clear to the Board what the connection was between facts alleged and the complainant's rights under the Act. For example one allegation was to the effect that the complainant overheard a union steward and a supervisor arguing about a grievance unrelated to safety. The foreman apparently then stated that he had the authority to discipline and discharge employees. In Mr. Nickarz's view that was a violation of his rights under the Occupational Health and Safety Act, because, while it was not addressed to him and did not relate to safety, it was a threat to dismiss a worker, something which he says he believes is prohibited by section 24(l)(a) of the Act.
4The Board therefore took considerable pains to review in detail with the complainant each and every allegation which Mr. Nickarz intended to advance as disclosing a violation of his rights. Of the twenty separate complaints which he originally filed the complainant relied on fifteen. Of those we can see only two which appear to bear any relationship to his rights under the Occupational Health and Safety Act.
5The first involves his objection to working in an area of the respondent's surface operations known as the transfer house, a dusty and noisy part of the mine operation where ore received at the surface is broken down. On December 3, 1980 when Mr. Nickarz was assigned to do certain carpentry work in the transfer house he refused to work because of the excessive amount of dust in the air. When he communicated his refusal to his foreman a joint inspection by the health and safety committee of the company and union was immediately conducted. As a result of the inspection the committee imposed several conditions to reduce any risk to Mr. Nickarz. Among other things, the respondent agreed to an arrangement whereby if Nickarz was assigned to work in the transfer house all equipment would be shut down for one hour in advance to allow the dust to settle so that he could work without undue exposure to dust. Mr. Nickarz accepted the conditions, as they apparently answered his concern.
6Mr. Nickarz alleged that later in the same day his lead hand or foreman made him wait in the carpentry workshop "in a safe place, specifically not near the power tools so I wouldn't hurt myself", and assigned him no work that afternoon, although he was paid in full.
7Thereafter the grievor worked without significant incident, until December 22, 1980. when he left the company to take a job elsewhere. From the time he left to the filing of this complaint, some five months later, on May 29, 1981, he never communicated to the respondent that he believed it had violated his rights under the Occupational Health and Safety Act.
8On the case that the grievor has pleaded the Board cannot find a prima facie case for relief under the Occupational Health and Safety Act. In the one instance when the grievor communicated a refusal to work to his employer for reasons of safety an inspection of the work place was conducted. In effect the complainant's protest was sustained by the joint inspection committee. Improved conditions were jointly proposed for future work in the area and were accepted by the complainant.
9The only remaining issue that could possibly relate to the Act is the allegation that following the inspection a foreman was facetious in his tone in instructing Mr. Nickarz respecting his work assignment. Even if it could be shown that the foreman's attitude was improper and could be taken as a valid form of reprisal against the complainant for having invoked his rights under the Act, it is clear that no substantial harm resulted from that isolated incident. The grievor suffered no discipline or loss of any wages or other employment benefit or opportunity, nor the threat of any of those things. Moreover he did not complain of the foreman's attitude either to his union or to the company directly. Where, as in the instant case, the complaint of such conduct is first brought to the company's attention several months after the event, and where the incident involved is trivial on its face, the Board would not exercise its remedial discretion in favour of the complainant.
10For the foregoing reasons the preliminary motion that the complaint did not disclose on its face a violation of the Act that would justify any remedial order was sustained and the complaint order was sustained and the complaint was dismissed.