Ontario Labour Relations Board

[1981] OLRB Rep. November 1534

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.

APPEARANCES: Paul Reinhardt for the complainant; Barry Edson and Tal Swartz for the respondent.

DECISION OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER M. J. FENWICK; November 25, 1981

1. The complainant alleges that she has been discharged by the respondent contrary to the provisions of section 24 of The Occupational Health and Safety Act, R.S.O. 1980, c. 321. She requests that she be compensated for all wages and benefits lost as a result of her discharge.

2. The respondent is a small jewellery manufacturer in Toronto. At the material time he employed one full-time employee and one part-time employee, as well as himself in his shop located on Peter Street. On November 1, 1980 he hired the complainant, Laurie Meaden, to. work as a jeweller. Her duties at that time consisted primarily of polishing, soldering and repairing jewellery. At the time she was hired the complainant was a recent graduate of George Brown College with specialized training in the manufacturing of jewellery. Following her graduation in April of 1980 she spent three months under an Ontario student program working at The Jewellery Factory, a larger jewellery manufacturer in Toronto. From November of 1980 to May of 1981 her responsibilities consisted mainly in repairing jewellery with occasional sales and reception responsibilities in the showroom on the respondent's premises. It is common ground that she was restricted to the simpler tasks, while more complex work, such as grinding, was performed by Mr. Swartz, a man of some fifteen years' experience as a jeweller.

3. On or about May 4, 1981, Mr. Swartz introduced a new process into his operation. Until that time any work that involved electrolitic plating or stripping of gold jewellery had been jobbed out. On that day, for the first time, he began to do electro-plating and stripping on his own premises.

4. The equipment involved is simple. The electro-plating machine is a small electrical transformer, to all outward appearances like an automobile battery charger, which reduces electricity from 120 volts to anything from 6 volts to 20 volts as required. The machine has electrical leads to two small alligator clips which function as electrodes. Electro-plating is accomplished by immersing a piece of gold leaf clipped to one electrode and the piece or pieces of jewellery in question clipped to the other, into an electrolitic solution and briefly conducting electricity through the solution. The solution is a mixture of water and a solution base used universally in the trade and available under the commercial name "Vigor Solution". For the electrolitic process it is placed in a crystal beaker, having previously been heated to a temperature of 70 to 80 degrees centigrade. One of the ingredients in the Vigor solution is cyanide; in certain conditions, therefore, the electrolitic solution can give off hydrogen cyanide gas which, in sufficient concentrations, can be highly toxic. It is common ground that care must therefore be used in the mixing of the solution and in providing adequate ventilation when the solution is being used.

5. Dr. Roland F. Grossman gave evidence respecting the toxicity of hydrogen cyanide gas. In concentrations of 300 parts per million or more it can cause death by inhalation within seconds. The threshold limit value for human exposure established by the American Conference of Governmental and Industrial Hygienists is ten parts per million. Ill effects can be produced at levels in excess of that amount, depending on the concentration of gas and the length of exposure. For example, Dr. Grossman testified that exposure to 50 parts per million would produce death within four minutes. Dr. Grossman explained that hydrogen cyanide interferes with the metabolic processes at the tissue level, preventing the transfer of oxygen to and from body tissue, thereby blocking the function of respiration at the cellular level. Exposure to concentrations of hydrogen cyanide gas at 25 to 30 parts per million can induce headache, a general feeling of aches and pain, vague discomfort and an inability to think clearly. Toxic effects can also be caused by the ingestion of cyanide solution or its absorption through the skin. It is therefore important to take precautions to avoid splashing when cyanide solutions are being handled.

6. The complainant had some experience working with electrolitic equipment-and material during her course at George Brown College. As part of her training she was cautioned against the danger of cyanide solutions. Ms. Meaden's evidence is that at both George Brown College and The Jewellery Factory where she had worked previously electrolitic plating and stripping is carried out on work benches which are equipped with large overhead hood ventilators.

7. What Ms. Meaden saw Mr. Swartz set up in his shop on May 4, 1981 was something considerably different. He decided to do the electro-plating in a small four-piece bathroom on the premises. He improvised a work bench by removing a drawer from a chest and laying it, inverted, across the bathtub. The electro-plating machine, beaker, solution and jewellery were then placed on the make-shift table. The only apparent ventilation in the bathroom is a ceiling vent or grill connecting the room to the central heating and air-conditioning system of the building in which it is located.

8. Having thus set up his electro-plating operations, at approximately 10:00 a.m. on May 4, 1981, Mr. Swartz summoned the complainant to watch as he processed a number of pieces of jewellery in the electrolitic solution. There is no doubt either in the evidence of Ms. Meaden or of Mr. Swartz that the complainant was immediately frightened. She refused to enter the bathroom while Mr. Swartz did the electro-plating, and stood at some distance, outside the door during the entire operation. The evidence establishes that Mr. Swartz processed a number of pieces of jewellery, taking between ten and twenty minutes to do so. By the complainant's account she stood within four or five feet of the beaker of solution, while the respondent's testimony would place her some eight to ten feet away. At the very least the evidence of both confirms that she remained outside the door of the bathroom in considerable fear.

9. The complainant's fears began some time prior to the first use of the electro-plating machine. On Arpil 28, 1981 when Mr. Swartz first brought the electro-plating machine into the shop and set it up on the bathtub Ms. Meaden asked him whether she would be required to work with it. She was told nothing definite. She then made several inquiries to ascertain the opinion of others with respect to the safety of doing electro-plating in the bathroom under the conditions which were apparently being established by Mr. Swartz. She first contacted her instructor at George Brown College who, upon hearing a description of the physical arrangement told her that in his opinion it was not a safe situation. She then phoned the Industrial Accident Prevention Association. The person with whom she spoke confirmed her instructor's opinion. Finally she called the Occupational Branch of the Ministry of Labour and was advised by a Mr. O'Reilly that what she described seemed to be an unsafe situation. According to her testimony he advised her that she should continue working if possible but that if she felt in any peril she should call an inspector and stand by in a safe area of the shop pending an inspection. While none of the three persons with whom she spoke testified in these proceedings, and the truth of the statements which they purportedly made is not established to the extent that they are hearsay opinions through the complainant, the evidence is nevertheless admissible for the limited purpose of establishing, as we find it does, that the complainant entertained fear of hydrogen cyanide poisoning from the time the electro-plating apparatus was set up in the shop and that she received three separate sources of advice which reinforced her concern.

10. The complainant's cause for concern did not cease when the initial electro-plating work was finished on May 4, 1981. She testified that when she returned to her work bench, located some thirty feet distant from the bathroom, she could still smell the almond aroma of the electro-plating solution. On the unchallenged evidence, the solution was left in the crystal beaker with only a make-shift cardboard cover when the electro-plating machine was not in use. As she worked through the balance of the day she felt some dizziness and nausea and began to worry about whether those symptoms had been caused by exposure to hydrogen cyanide fumes.

11. After work she went directly to Women's College Hospital where she was examined by two doctors. At the time of her visit to the hospital the complainant's symptoms included light-headedness, dizziness, aches in the legs, a "tingly feeling" and shortness of breath. A medical examination, a report of which was submitted in evidence, determined that she had a normal body temperature and pulse, and a normal blood pressure. Her rate of respiration was slightly higher than normal and some cyanosis or blue colouration was evident in the extremities of her body. A blood test revealed a marked decrease in the acidity of her blood, a low concentration of carbon-dioxide, and a high concentration of oxygen in the blood. The doctors who examined Ms. Meaden diagnosed the cause of her problem as "exposure to noxious fumes". They prescribed no medication but sent her home and, according to her evidence, advised her that she would be foolish to return to the same work situation.

12. A substantial part of the respondent's case was to adduce evidence through Dr. Grossman to establish that the symptoms described and the tests recorded in the medical report are as consistent with a condition of hyperventilation caused by stress as with toxicity as a result of noxious fumes. More specifically, Dr. Grossman gave firm and unrebutted evidence to establish that the medical evidence reflected in the report does not support a conclusion that the complainant specifically suffered any ill effect from exposure of hydrogen cyanide gas. In particular Dr. Grossman testified that a significant exposure to cyanide would normally cause a higher pulse rate and a lower rate of respiration as well as a significant loss of blood pressure.

In his view the results of the test on arterial blood gases taken at Women's College Hospital rule out cyanide poisoning to the extent that a higher presence of lactic acid was not found in the blood; the complainant appeared to have a marked decrease in acidity. Dr. Grossman advanced the opinion, based on the material in the medical report, that in all likelihood the complainant was suffering from hyperventilation, a condition which could be caused by a number of factors including anxiety. On the other hand, while he ruled out the possibility of any cyanide poisoning, he did not categorically disagree with the diagnosis of the doctors at Women's College Hospital. He allowed that the same symptoms could have been caused otherwise than by hyperventilation, and could have been caused by exposure to noxious fumes as diagnosed in the emergency ward report.

13. While the evidence of Dr. Grossman is instructive and helpful to the Board in a general sense, it can have only a limited bearing on the merits of the case. To succeed in her complaint under the Occupational Health and Safety A ct, the complainant must, as a first condition, establish that she had grounds for concern about her safety. She need not establish that she actually suffered some degree of cyanide poisoning. The evidence of Dr. Grossman, if anything, confirms that on the evening of May 4, 1981 the grievor was feeling symptoms consistent with some form of illness which could have been induced by exposure to noxious fumes. Even on Dr. Grossman's analysis of the medical evidence it would appear at the very least that Ms. Meaden was experiencing hyperventilation, a condition consistent with anxiety or fear. On any view of the evidence it appears that on the evening of May 4, 1981 Ms. Meaden had a basis for concern. In addition to the warnings which she had obtained previously fr6m three sources, she now had the disquieting experience of having felt ill effects which she believed resulted from exposure to the hydrogen cyanide fumes, along with the confirmation of medical tests and a written medical report that she had suffered ill effects because of exposure to noxious fumes. That was her state of mind as she went to work on May 5. 1981.

14. That is the day when the events critical to this complaint occurred. There is some dispute as to who initiated a discussion between Ms. Meaden and Mr. Swartz about the electro-plating work on the morning of that day. We need not resolve that dispute for the purposes of this complaint. It is clear on the evidence before us that day the complainant and her employer had an argument regarding whether or not Ms. Meaden must work with the electrolitic solution in the bathroom. By Mr. Swartz's own evidence Ms. Meaden categorically stated that she would not perform that work because she considered it dangerous to do so. by his own account Mr. Swartz indicated to Ms. Meaden that to be a jeweller it was imperative that she do stripping and electro-plating with the cyanide solution. In his own words "I said if she doesn't like the conditions she can quit or give me her notice". It is clear from the demeanour of Mr. Swartz as observed by the Board that he is a man of strong opinion, that he felt Ms. Meaden's position to be entirely unjustified by his years of experience as a jeweller, and that he put that choice to her in clear and forceful terms. The evidence of Ms. Meaden, which the Board accepts, is that she felt that she had no alternative at that point. She believed that in effect her employer was saying "Do this work or get out". Since she believed that to do the work would jeopardize her physical well-being she determined that she was without any alternative and left the premises.

15. Immediately after leaving the shop Ms. Meaden telephoned inspector O'Reilly of the Occupational Health Branch to complain about what had happend and to ask that an inspection of the premises be conducted. Unfortunately it seems that the Branch took the view that an immediate inspection was not warranted because Ms. Meaden's employment was terminated. It appears that some weeks later, on June 25, 1981 the Occupational Health Branch conducted an inspection of Mr. Swartz's premises for the express purpose of assessing the exposure of hydrogen cyanide in the stripping operation. The resulting report contains the following account:

The stripping operation is done in a 500 Ml. stainless steel beaker and is located in a washroom which measures about 9ft x 6ft x lOft. The washroom has exhaust ventilation via a 4" x 9" ceiling duct. Ventilation measurements showed a face velocity of 100 f.p.m. and a total exhaust air flow of 27 c.f.m. During stripping operations the door to this room is left open ...

The presence of hydrogen cyanide (hydro cyanic acid) was determined using Drager detector tubes and was found to be 100 ppm at the stripping solution surface before stripping operations were started ...

During stripping operations, it was found that the concentration of hydrogen cyanide (hydro cyanic acid) in the worker's breathing zone was below the detection level of the Drager tube used, i.e. less than 2 ppm.

Immediately after stripping operations were finished, the presence of hydro cyanide (hydro cyanic acid) was determined using Drager detector tubes in the washroom, the corridor outside the washroom, and in the workshop. In all three cases the concentration was below the detection limit, i.e. less than 2 ppm.

16. In short, the inspection conducted at that time, in conditions apparently similar to those experienced by Ms. Meaden on the day before her employment was terminated, indicate no significant danger. That determination does not, however, dispose of the complaint. The ultimate issue is whether the complainant had grounds to believe she was in danger and was therefore exercising her rights under the Act When she reused to perform the electro-plating work.

17. The first issue to be determined is whether Ms. Meaden quit or was discharged. If she was not discharged, disciplined or otherwise threatened by her employer there can be no grounds for complaint under the Occupational Health and Safety Act. Having regard to the totality of the evidence, it is clear that in her confrontation with Mr. Swartz on her last day of work Ms. Meaden was given little or no choice. There can be no doubt on the evidence that Mr. Swartz's statement to his employee was in effect "these are the conditions under which you must work, take it or leave it". The Board is satisfied that when that statement was put to Ms. Meaden she believed, on the strength of the medical evidence then available to her, that to continue to work in the conditions required by Mr. Swartz would jeopardize her health. In these circumstances it would be most unrealistic to conclude that she voluntarily quit; we are satisfied that in fact she was constructively discharged at that time. (cf. Re Welmet Industries Limited and United Steelworkers (1980) 1980 CanLII 3996 (ON LA), 28 L.A.C. (2d), 84; and see, generally, Christie, Employment Law in Canada (Toronto 1980) at p. 335.) We therefore conclude that Ms. Meaden was discharged.

18. The issue then becomes whether Ms. Meaden's discharge was contrary to the Occupational Health and Safety Act. Article 23, provides, in part, as follows:

(3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine, device or thing he is to use or operate is likely to endanger himself or another worker;

(b) the .physical condition of the work place or the part therefore in which he works or is to work is likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regula­tions and such contravention is likely to danger himself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of his refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of his knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his work station.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of his refusal to work or do particular work continues to be likely to danger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works continues to be likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regula­tions and such contravention continues to be likely to endanger himself or another worker, the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

19. The Act also prohibits any interference by the employer with the rights of an employee described above. Article 24, subsection 1 provides as follows:

24.-(l) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.

20. Counsel for the respondent submits that in this instance Ms. Meaden should have simply refused to work and then called for an inspection of the stripping operation as contemplated in the procedures set out in section 23 of the Act. Ideally that is what should have happened. It was equally open, however, to the respondent to call for an inspection when the difference arose between himself and his employee respecting the safety of working conditions. More importantly, Ms. Meaden's ability to call for an inspection or do anything else was effectively cut off by the response of Mr. Swartz which, as we have found, amounted to a constructive discharge. In practical terms, she was fired after she refused to perform the stripping work and before she could pursue her rights any further. In those circumstances the employer should not be heard to object that she should have done more.

21. Under the Act it was the complainant's first right to refuse to do the stripping work if she had "reason to believe" that the physical condition of the work place was likely to endanger her. We have no difficulty concluding, given the ill effects which she felt the day before and the medical diagnosis obtained, that she had grounds for that belief. Once she reported her refusal to Mr. Swartz he had an opportunity to investigate and communicate his own view. In this case there was little need for an investigation as both Mr. Swartz and Ms. Meaden were well aware of the facts that were the basis for her objection. At that point, therefore, when Mr. Swartz expressed his disagreement with Ms. Meaden in the light of his knowledge of the situation and his experience in the contemplation of section 23, subsection 6 of the Act, she had a second right to refuse to do the work as long as she had at that point "reasonable grounds" to believe that it was unsafe.

22. In our view at the time that Mr. Swartz registered his disagreement, emphasizing his experience of how things are done in the jewellery industry, Ms. Meaden nevertheless did have reasonable grounds to believe that the equipment and the physical condition of the work place were likely to endanger her. In addition to the ill effects which she had experienced the day before, she had the advice, whether or not it was justified, of a former teacher and an officer of the Occupational Health Branch that the circumstances seemed irregular and dangerous. She also had the experience from her own community college training and apprenticeship in another jewellery shop which suggested that the stripping process as set up in the respondent's washroom did not have adequate ventilation. We cannot conclude that in these circumstances she should have been entirely persuaded by her employer's arguments about his own experience and judgment in the matter. Given the seriousness of the possible consequences of a mishap involving hydrogen cyanide gas we must conclude that Ms. Meaden did have reasonable grounds for concern at that time.

23. The fact that a subsequent Ministry inspection of the premises might have confirmed that Swartz was correct (a conclusion we expressly do not make absent adequate evidence respecting the functioning of the ventilation system in the building on the two respective days in question) does not diminish Ms. Meaden's rights on the date of her discharge. At that time she was entitled to refuse to work pending a resolution of the disagreement between herself and her employer. Her abrupt discharge by Mr. Swartz effectively deprived her of the ability to pursue such further rights as she might have under section 23. In other words, by dismissing her prematurely for her refusal to do the plating and stripping work the employer foreclosed any opportunity that she might have to realize the protections of the Act. Her refusal to work out of fear for her safety is a right that she had under the Act; we can draw no other conclusion than that she was discharged because she chose to exercise that right. We must therefore find that the respondent has violated section 24(l)(a) of the Occupational Health and Safety Act.

24. The Board therefore orders that the respondent pay compensation to Ms. Meaden for wages and benefits lost from the date of her discharge to the date of this order, with allowance for normal mitigation of damages including such wages and benefits as may have been earned elsewhere. The Board remains seized of this complaint in the event the parties are unable to agree on the amount of compensation.

DECISION OF BOARD MEMBER W. G. DONNELLY:

The decision of Board Member W. G. Donnelly to follow at a later date.