Ontario Labour Relations Board
[1981] OLRB Rep. December 1701
0384-81-OH Laurie Meaden, Complainant, v. Tal Swartz, carrying on business under the name of AMS Diamonds, Respondent.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members W. G. Donnelly and M. J. Fenwick.
DECISION OF BOARD MEMBER W. G. DONNELLY; December 9, 1981 (Majority decision published in November, 1981 issue)
1 will not repeat the facts of the case as the recital contained in the majority decision is exhaustive and complete.
I agree that the complainant refused to do the work in question because she honestly believed that to have done so would have endangered her health. She therefore had the right to refuse to do the task assigned to her, in accordance with the provisions of the Occupational Health and Safety Act 1978, hereinafter referred to as "the Act".
Ms. Meaden, prior to the day on which the incident took place, went to some lengths in consulting various authorities about the possible hazards of doing stripping work under the conditions which prevailed in the respondent's shop. In addition, she testified that she was informed by a Mr. O'Reilly of the Occupational Branch of the Ministry of Labour, inter alia, that".. . if she felt in any peril she should call an inspector and stand by in a safe area of the shop pending inspection". (Quotation taken from paragraph 9 of the majority decision).
It is therefore clear that she was well informed of her rights and obligations under the Act but failed to stay at the place of work and call for an inspector as she was obliged to do. Had she done so no obligation for compensation would have arisen. On these grounds alone it would have only been fair and equitable for the Board to have ordered a sharing of any compensation due.
Substantiation of the fact that she knew that she had the right and obligation to ask for an inspector resides in the statement contained in paragraph 15 of the majority decision where it is stated: “Immediately after leaving the shop Ms. Meaden telephoned Inspector O'Reilly of the Occupational Health Branch to complain about what had happened and to ask that an inspection of the premises be conducted". (emphasis added)
The said paragraph 15 goes on to say “… it seems that the Branch took the view that an immediate inspection was not warranted because Ms. Meaden's employment was terminated". In a narrow, technical sense that view was in conformity with the Act, as written. However as Ms. Meaden had phoned immediately after leaving the work place I would suggest that the Branch's decision not to inspect immediately was a serious error of judgment. I do not think that the Branch can argue that it cannot exercise discretion in such cases, and an immediate inspection, in this instance, should have been ordered. Its failure to do so has inevitably compounded the quantum of compensation for which the Respondent will become liable. I therefore believe that the Occupational Health Branch should be aware of the facts of this case so that a degree of flexibility, which is not only desirable but necessary, in interpreting the provisions of the Act be exercised in order to obviate similar results in future cases.