Walter Doupagne v. Baltimore Aircoil of Canada, 1982 CanLII 846

Ontario Labour Relations Board

[1982] OLRB Rep. March 327

1216-810H; 1261-810H Walter Doupagne, Complainant v. Baltimore Aircoil of Canada, Respondent

BEFORE: Kevin M. Burkett, Alternate Chairman and board Members W. H. Wightman and C. A. Ballentine.

APPEARANCES: Paul Falkowski, Ken Valentine, Walter Doupagne, Ronald Hilts, Lorne Heard, Brian Shell and Gerry Barr for the complainant; J.P. Wearing and R. Hampton for the respondent.

DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER W.H. WIGHTMAN; March 5, 1982

1. The Board directs that the above complaints be and the same are hereby consolidated.

2. The complainant alleges that he has been dealt with by the respondent contrary to the provisions of Section 24(1) of the Occupational Health and Safeth Act, R.C.S.O. 1980, (hereinafter referred to as "the Act").

3. These complaints arise out of a two-day suspension imposed on Mr. Walter Doupagne on July 22, 1981 and a subsequent two-week suspension imposed on Mr. Doupagne on August 28, 1981. The first suspension was imposed in response to an incident which occurred on July 21, 1981 pertaining to the use of a fan by an employee who was welding at the time. The July 22nd letter advising Mr. Doupagne of this supension is over the signature of Mr. R.J. Hampton, the company's General Manager and reads:

I am very reluctantly obliged to put on record, the fact that despite numerous informal warnings, you are continuing to allow welding to take place without using the smoke extraction equipment provided.

I would point out that under the Ocupational Health and Safety Act, you as the Senior Mechanic in the area, have a clear responsibilty to encourage safe work practices. This would include such practices as encouraging other employees to follow your lead in using such equipment.

The use of this smoke equipment has been discussed at length with the Ministry of Labour and its use when available is mandatory in our plant.

When the equipment was installed a meeting was held to discuss it. The seriousness of smoke pollution control was pointed out from both the legal and environmental viewpoints. I am sure you are aware of this.

Since that time five instances are on record when the subject was brought to your attention. I am sure there have been other times when it was not noted.

The Company regards your ignoring instructions related to this subject (Health and Safety) very seriously, and accordingly, you are suspended from work for two days - July 23rd and 24th, 1981.

I must point out that further disregard on your part or failure to take reasonable efforts with regard to personnel in your area may result in further discipline up to and including discharge.

The second suspension was imposed in response to an incident pertaining to the use of company supplied ear plugs which occurred on August 27, 1981. The August 28th letter advising Mr. Doupagne of this suspension, also over the signature of Mr. Hampton, reads:

I have very carefully reviewed the incidents concerning the use of new ear plugs in the coil area with all the people concerned including yourself.

In my opinion the issue is not which ear plugs work the best, but, rather relates to attitude towards plant supervisors and your general reaction to the change.

The following points seem beyond dispute.

1. If the new plugs were unsatisfactory you could easily have discussed the matter in a normal way with your supervisor - you did not.

2. When told you were disobeying a direct instruction to wear them you replied in a rude manner and again declined to discuss the matter. In fact you indicated you were going to continue to wear the old ones regardless.

3. In your words and actions you demonstrated your contempt for plant supervision.

4. By example at least you encouraged others not to wear these ear plugs.

I regard this matter as extremely serious since we cannot run a company without respect for authority and the cooperation of senior employees. You should know that discharge was seriously considered since a two day suspension was given in July. You will also no doubt remember our own discussion regarding attitude at this time.

In the circumstances you will be suspended from work for two weeks effective August 31, 1981. I'm not taking further action, I have taken account of your years of seniority here as well as all the other items I regard as relevant.

5. Mr. Doupagne has been employed by the company for approximately 10 years. He has worked in the Mechanic-l (M-l) classification for the past seven years. A person occupying the M-l classification performs a function analogous to a lead hand in that he is responsible for giving on-the job instruction and advice to a small crew. At the time of the two suspensions with which we are concerned there were three other employees in Mr. Doupagne's crew. The crew performed work on the coil line which involved a considerable amount of welding. Mr. Doupagne had complained about the smoke in the work area about two years before. The company responded by installing exhaust ducts in the plant. When this method of smoke extraction did not prove entirely satisfactory, the company purchased and installed a number of portable smoke extractors. These devices draw the smoke from the point at which a weld is being made and filter it. The evidence establishes that if the nozzle of the smoke extractor is maintained 8" to 10" from the point at which the weld is being made over 90% of the welding smoke will be drawn into the device and filtered. One of these devices was installed in the coil line area. A standard room fan had been used by the welder in the area prior to the introduction of the portable smoke extractor. Presumably, it had been used to both cool the welder and blow the welding smoke away from his face. The evidence is that the fan continued to be used after the smoke extractor was in place with the result that smoke that would otherwise have been filtered by the extractor was blown by the nozzle and into the work environment.

6. Mr. Coupagne was told in June by Mr. R. Smith, the plant foreman, that the fan should not be used where it interferes with the smoke extractor. He was again told on the morning of July 21st by Mr. Watters, a group leader, on instruction from Mr. Tenage, the plant superintendent, that the fan which was being used by one of the welders in his crew should be turned off because it was interfering with the operation of the smoke extractor. Mr. Doupagne acknowledged in cross-examination that he had received the order and that he had not complied with it. Mr. Tenage accompanied a Ministry of Labour safety inspector on an inspection of the plant that same afternoon. As he passed the coil line, Mr. Tenage observed that the fan, which he had directed be shut off that morning, was still being used and was continuing to interfere with the operation of the smoke extractor. He again directed Mr. Watters to instruct Mr. Doupagne to have the fan shut off. The group leader told Mr. Doupagne that the Ministry inspector had ordered it shut off. Mr. Doupagne refused to have the fan shut off and said that he wanted to speak with the inspector. He approached the inspector who told Mr. Doupagne that the fan could be used only so long as it did not interfere with the smoke extractor. The fan was then shut off and has not been used since.

7. Mr. Doupagne was asked in cross-examination if he shut the fan down when asked to do so. He replied in the negative and testified that he wanted to know why Mr. Tenage wanted it shut off because he considered it an unreasonable request. He was then asked if he asked Mr. Tenage for a reason or just refused and he replied that he simply refused. He was asked why he refused to turn the fan off when asked to do so by the group leader and replied that he wanted to speak with the inspector. Mr. Doupagne testified that without the fan "it was too hot." The welder who was doing the actual welding testified that the removal of the fan caused him to take additional breaks. He did not claim that his health or safety was endangered. Mr. Doupagne also testified that the fan was blowing the excess smoke away but admitted that he never discussed the existence of excess smoke with the inspector. The company responded to this incident by suspending both Mr. Hilts, the welder, and Mr. Doupagne for two days. The letter advising Mr. Doupagne of his suspension has been set out.

8. We now turn to the facts relating to the second suspension imposed on Mr. Doupagne. Mr. Doupagne returned from his vacation on August 24th to find that during his absence the company had supplied its employees with a different type of ear plug than that which had been supplied prior to his vacation. The company, after investigating the matter, decided to supply a reusable soft plastic type in place of the disposable sponge type that had been supplied. The evidence is that both types of ear plug have a satisfactory decibel rating; although the reusable type has a better decibel rating. The company explained that the disposable type had to be hand formed and because of the amount of oil and grease in the work place, often became dirty. The company was told by the manufacturer that the reusable type of ear plug would fit the vast majority of ear canals. With the exception of Mr. Doupagne, no other employee has complained about the reusable plugs. It is accepted that in order to be fully effective, any ear plug must fit the ear canal.

9. Mr. Doupagne testified that he tried the reusable plugs for a day and a half and experienced increased noise levels because he couldn't get a perfect fit in the left ear canal. He did not raise his concern with anyone from the company. Indeed, he went to the stockroom and asked for a supply of the disposable sponge ear plugs. He was told by the storekeeper that he had been ordered not to release the disposable plugs. However, Mr. Doupagne insisted that he be supplied and demanded a box of the disposable type. The storekeeper reluctantly complied. Mr. Doupagne then returned to the coil line and he, along with the other members of his crew, began to use the disposable type. The storekeeper immediately advised Mr. Tenage, the plant superintendent, and Mr. Smith, the general foreman, of what had transpired. They in turn proceeded to the coil line where they found Mr. Doupagne and his crew wearing the disposable ear plugs. Mr. Tenage testified that he told Mr. Doupagne that he was disobeying a direct order to which Mr. Doupagne replied that he didn't care, the old ones were better, and the new ones "good for only 24 decibels". It was explained to Mr. Doupagne that he had misunderstood the meaning of the decibel rating. The decibel rating refers to the decibels of sound which are blocked by the plug and not the decibel level above which the plug is ineffective. Mr. Smith corroborated Mr. Tenage's evidence with respect to the exchange which took place at the coil line. Mr. Doupagne, while acknowledging the misunderstanding with respect to the decibel rating, maintained that he told Mr. Tenage at the time that the reusable ear plugs were unsafe and that he was not getting adequate protection. He also testified under cross-examination that he figured he should have a choice in the matter. Both Mr. Tenage and Mr. Smith denied that Mr. Doupagne made any reference to safety or claimed that the reusable plugs were ineffective. Mr. Doupagne was given the two week suspension in response to this incident.

10. The company argues that Mr. Doupagne, in acting as he did, was not exercising rights protected under the Act. The company maintains that Mr. Doupagne was being insubordinate on both occasions and cannot now rely upon the protection provided under the Act to employees who respond to danger in the work place. The company asks the Board to find that Mr. Doupagne, who was responsible for the direction of those in his crew, was told by the company to discontinue the use of the fan so as not to interfere with the smoke extraction equipment and refused. He disregarded the instruction of Mr. Smith, disobeyed the direction of Mr. Tenage, as conveyed through the group leader, and ignored the request of the group leader without first seeking out the safety inspector. In the absence of any real or imagined safety threat the company asks the Board to find that it responded in accord with its established plant rules and disciplined Mr. Doupagne for insubordination. It is argued by the company that the ear plugs supplied by it to Mr. Doupagne upon his return from vacation meet the requirements of the Act pertaining to hearing protection. In the absence of any attempt by Mr. Doupagne to advise the company that he considered the reusable ear plugs unsuitable prior to taking matters into his own hands, the company asks the Board to find that Mr. Doupagne was disciplined for exhibiting an unsatisfactory attitude and not for exercising any right under the Act. The company also maintains that the employee response which is protected under the statute is a refusal to work. Even if Mr. Doupagne had reason to believe he was endangered, which the company denies, he did not refuse to work but acted unilaterally and contrary to company instruction, and in these circumstances, the company maintains that he cannot rely upon the protections afforded employees under the Act.

11. The union argues that an employee is not limited to a refusal to work if he perceives danger in the work place. The union maintains that an employee can take any number of steps of causing a disruption in production and still claim the protections of the Act if the employer moves against him. The union, relying upon Section 14(2)(a)(c) and (g) of the Act, argues that the company must show in this matter that it gave Mr. Doupagne the same level of training in the use of smoke extractor equipment as was given the welders. The union argues that the legal burden is upon the company and in order to succeed it must show that Mr. Doupagne was properly instructed in the use of the smoke extractor equipment. It is the union's submission that the company, not Mr. Doupagne, was delinquent in this matter and that Mr. Doupagne as an employee in the M-l classification acted properly and should not have been disciplined. Turning to the incident with respect to the ear plugs. The union argues that Mr. Doupagne perceived a difference in the noise level he was subjected to while wearing the resuable ear plug and suggests that until it can be proven otherwise it must be accepted that the reusable plugs did not fit Mr. Doupagne. The union, referring to section 1 7(2)(b) and 14(2)(g) and regulations 83 and 134(b), argues that it was incumbent upon the employer to train Mr. Doupagne in the use of protective devices. The union argues that in this case there should have been a test taken by the employer in order to determine if the ear plug was working properly when used by Mr. Doupagne. The union asks the Board to find that the reusable ear plugs issued to Mr. Doupagne in August did not fit him properly, that he advised the company of this fact and, in contravention of section 24 of the Act, was disciplined for so doing.

12. Section 24 of the Act protects a worker from reprisals by an employer because the employee has acted in compliance with the Act. Section 24(1) provides:

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.

A worker who complains that section 24(1) of the Act has been contravened may have the matter dealt with by final and binding arbitration or by the Ontario Labour Relations Board. Section 24(5) provides that on an inquiry by the Board 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 the person acting on behalf of the employer. It is to be noted that the burden is one of establishing that the actions complained of were not in the nature of a reprisal prohibited under section 24. The employer does not have to establish that he has not violated one of the substantive sections of the Act, as suggested by the union. The enforcement of the employer's duties under the Act are otherwise provided for. The Board's jurisdiction is limited to the issue of an employer's response to the lawful exercise of employee rights under the Act. The Board is empowered under section 24(7) to substitute such other penalty for the discharge or discipline, even where the worker has been discharged or otherwise disciplined for cause, as to the Board seems just and reasonable in the circumstances.

13. Under section 23 of the Act a worker is given the right to refuse to work where his health or safety, or that of a fellow worker, is endangered. A worker may refuse to work or do particular work where he has "reason to believe" that by performing the work he is likely to endanger himself or a fellow worker. The section establishes a procedure under which the worker is required to promptly report the circumstances of his refusal to his employer or supervisor who in turn is required to investigate. If, following the employer's investigation, the work continues to have "reasonable grounds to believe" that by performing the work he is likely to endanger himself or another worker, a Ministry inspector is called and, under the section, "shall… decide whether the machine, device, thing or the work place or part thereof is likely to endanger the worker or another person."

14. The employer argues that the only worker activity which is protected from employer reprisal under section 24 of the Act is a refusal to work as provided under section 23 of the Act. The Board, in deciding otherwise, stated in Adelaide Building Services, [1980] OLRB Rep. July 933:

That provision does not, on its face, limit its protection or application to situations where a worker has refused to perform work. The Act itself speaks to matters other than refusal, and, among their things, imposes a variety of obligations upon constructors, employers, supervisors, workers, owners and suppliers (see Part III of the Act). A worker who is trying to company with the provisions of this Act by fulfilling his obligations under section 17, or who is trying to seek enforcement of this Act by getting his employer or supervisor to fulfill the obligations set out in sections 14, 15 and 16 of the Act, is no less entitled to the protection of section 24(1) than is the person who refuses to perform work.

15. Although the protection afforded an employee under section 24 extends beyond a refusal to work, it is necessary to consider the extent to which the Act permits employee insubordination. Under section 23 of the Act an employee is expressly entitled to refuse to do whatever work he has been ordered to do where the preconditions set out in the section have been satisfied. Nowhere else in the Act can there be found an express entitlement to engage in insubordination. Under section 17(2)(b) a worker is under a statutory obligation not to work in a manner that may endanger himself or another worker. This section, considered in isolation, may be read as creating an implied entitlement to engage in insubordination to the extent that a worker, regardless of the instructions of his employer, is required to work in a manner that does not endanger himself. However, when section 17(2) is read in the context of the Act as a whole, we are unable to conclude that it creates an independent entitlement to refuse to obey the instructions of the employer beyond that contained in section 23 of the Act. The duty of an employee under section 17(2) is not new. It existed under section 27 of the Industrial Safety Act, 1971 S.O. 1971 c. 43. It was never viewed as conferring a right to refuse to work. That right was enacted for the specific purpose and to be applied in the specific circumstances described in section 23 of The Occupational Health and Safety Act. Where an employer is subject to a written or verbal instruction and he has reason to believe that by complying with the instruction in the carrying out of his work he is likely to endanger himself, he is entitled to refuse to do the work in the manner directed.

16. The distinction between section 17(2) and section 23 is critical to the scheme of the Act. A refusal to work under section 23 triggers the carefully constructed mechanism established under that section for resolving situations which are perceived by an employee as posing a danger to his health and safety. If an employee simply disregards the instructions of his employer and takes it upon himself to establish his own procedure for doing the work, the initial problem may not be identified as posing a threat to his health and safety or that of any other employee subject to the same instruction. Furthermore, the resources which the Act contemplates be brought to bear (employer investigation and follow-up and, if necessary, the involvement of an inspector) may not be, to the potential detriment of workers. Where a worker is acting within the bounds of his own discretion, section 1 7(2)(b) obligates him not to work or operate equipment in a manner that may endanger himself or a fellow worker. However, where a worker is acting under a specific instruction, oral or written, and he has reason to believe that by complying with that instruction he may endanger himself or a fellow worker, he complies with section 17(2)(b), not by unilaterally substituting his own work method for that laid down by his employer, but rather, by availing himself of the right under section 23 to refuse to do work which may endanger himself or another worker. The administration of the Act in this way enhances worker safety by promoting immediate disclosure, discussion and inspection rather than resort to ad hoc solutions and the potential for hazardous situations to go undetected. With this general understanding of the scheme of the Act, we turn to the merits of this complaint.

17. The relevant parts of sections 14, 15, 16 and 17 are set out below.

18. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by him are maintained in good condition;

(d) the equipment, materials and protective devices provided by him are used as prescribed;

(2) Without limiting the strict duty imposed by subsection 1, an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(g) take every precaution reasonable in the circumstances for the protection of a worker;

16. (1) A supervisor shall ensure that a worker,

(b) uses or wears the equipment protective devices, or clothing that his employer requires to be used or worn;

17. (1) A worker shall,

(b) use or wear the equipment, protective devices or clothing that his employer requires to be used or worn;

(c) report to his employer or supervisor the absence of or defect in any equipment or protective device of which he is aware and which may endanger himself or another worker.

(2) No worker shall,

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself or any other worker;

Regulations 83, 134(b) and 144 provide as follows:

83. A worker required to wear or use any protective clothing, equipment or device shall be instructed and trained in its care and use before wearing the protective clothing, equipment or device.

84. A worker who may be exposed to a biological chemical or physical agent which may endanger his safety or health shall be trained,

(b) in the proper use and care of required personal protective equipment;

144. (1) In this section, "decibel" means decibel measured to a type 2 sound lever meter conforming to the standard Z107.l of the Canadian Standards Association operating on the A-weighing network with slow meter response.

(2) Where a worker is exposed to a sound level of 90 decibels or greater,

(a) measures shall be taken to reduce the sound level below 90 decibels; and

(b) where such measures are not practicable,

(i) the duration of exposure set out in Column 2 of the Table in subsection 5 shall not exceed the duration shown for the particular sound level set opposite thereto in Column 1 of the Table in subsection 5, or

(ii) the person shall wear hearing protection.

(3) Where a worker is exposed to a sound level of 115 decibels or greater, he shall wear hearing protection.

(4) Clearly visible warning signs shall be posted at the approaches to an area where the sound level is more than 90 decibels.

(5) The warning signs referred to in subsection 4 shall state,

(a) the daily exposure for the particular sound level permitted by the following Table; and..

(b) that hearing protection must be worn when the daily explosure is more than that permitted for the particular sound level.

TABLE

COLUMN I COLUMN 2

Sound Level - Duration - Hours

in Decibels per 24 hour Day

90 8

92 6

95 4

97 3

100 2

102 1¼

105 1

110 ¼

115 ¼ or less

Over 115 No exposure

(6) Where hearing protection is required by this section, the protection shall be sufficient to reduce the sound level below the sound level in Column 1 of the Table in subsection 5 for the exposure corresponding to that sound level in Column 2 of the Table in subsection 5.

18. The first issue to be determined is whether Mr. Doupagne was disciplined on July 22, 1981 because he was acting in compliance with the Act. We are satisfied on the evidence that as part of his job responsibilities as Mechanic-1, Mr. Doupagneis required to direct those in his crew in accord with company policy and the directives of more senior management. Mr. Doupagne was told in June by Mr. Smith, the general foreman not to operate the fan in a manner that interferred with the smoke extractor. Even if we accept that Mr. Doupagne did not understand the implications of that instruction, he was given an express instruction by Mr. Watters, the group leader, on the morning of July 2 1st. He was told to get the fan down and he failed to comply or direct the welder to comply or to identify a concern for the health and safety of the welder. Indeed, there is no evidence before us that the health or safety of the welder or anyone else in his crew was in danger at the time. Under section 24 of the Act an employee may refuse to work or do particular work where he has reason to believe that he is likely to endanger himself or another worker by doing the work he has been directed to do. Other than for the exception enunciated in section 24, there is nothing in the Act which allows an employee to refuse to follow the instructions of his employer. Mr. Doupagne refused to follow the instruction given by Mr. Watters on the morning of July 21st and cannot rely upon the Act in defence of his actions.

19. When confronted by the group leader on the afternoon of July 21st he again refused to follow the instruction of a supervisor and instead sought out the inspector who, he had been told, had directed the fan be shut off. In the absence of evidence to show that the company may have been in violation of the Act or that the smoke emissions (which the fan was causing to blow into the atmosphere) or the heat, posed a threat to health and safety, we do not believe that Mr. Doupagne, given his earlier refusal to obey the same instruction, sought out the inspector for the purpose of having the Act enforced.

20. This is not a case where the inspector was called to deal with a matter which an employee genuinely perceived to pose a threat to his or a fellow employee's health or safety or to constitute a violation of the Act. We are satisfied on the evidence that Mr. Doupagne sought out the inspector because he did not believe that the inspector had made an order which he considered to be unreasonable. The fact that Mr. Doupagne may not have received the same level of training as the welders, a fact relied upon by the complainant, is irrelevant. Notwithstanding the misstatement of the nature of Mr. Doupagne's insubordination in Mr. Hampton's letter of July 22nd, we are satisfied that Mr. Doupagne was given a two-day suspension on July 22nd for reasons other than acting in compliance with the Act or Regulations. Accordingly, we hereby find that the suspension given him on July 22nd does not constitute a violation of section 24 of the Act.

21. We now turn to the suspension imposed on Mr. Doupagne on August 22nd in connection with the use of the reusable ear plugs. Before dealing with the merits of this complaint it is helpful to review the statutory framework as it pertains to the provision and use of protective devices or clothing. A reading of the sections of the Act and the Regulations relied upon by the union makes it clear that protective devices are provided by the employer and must be worn or used by the worker. Section 14(l)(a) imposes on an employerthe duty of ensuring that the protective devices as prescribed are provided and section 14(l)(d) imposes a duty on an employer to ensure that the protective devices provided by him are used as prescribed. Section 16(1)(b) imposes on a supervisor the duty of ensuring that a worker uses or wears the protective devices that his employer requires to be used or worn. Section 17(l)(b) imposes a duty on a worker to use or wear the protective devices or clothing that his employer requires to be used or worn. The statutory protection afforded an employee in the event he is not provided with the protective devices he requires or the protective devices he is provided with are defective is contained in section 17(l)(c) of the Act. Under that section a worker is under a duty to report to his employer or supervisor the absence of or defect in any protective device of which he is aware and which may endanger himself or another worker.

22. Under section 17(2)(b) a worker is under a statutory duty not to use or operate any equipment, machine, device or thing or work in a manner that may endanger himself or any other worker. Section 24, as discussed, establishes the right and the procedure under which a worker is entitled to refuse to do work which he has reason to believe is likely to endanger himself or another worker. As we read the Act there is a positive obligation on the employer to provide the protective devices which are prescribed or required and an equally positive obligation on the worker to use or wear protective devices. If the prescribed or required protective devices are not provided or are defective the worker is under an obligation to report this fact to his employer and, failing a corrective response, may be entitled to avail himself of the protections provided under section 24; that is, he may be entitled to refuse to work. There is nothing in the Act which entitles a worker to refuse to use or wear the protective devices supplied by his employer or, on his own initiative, to substitute protective devices of his own choosing for those provided by his employer.

23. It is against this backdrop that we must now review the decision of the employer to suspend Mr. Doupagne for two weeks effective from August 28, 1981. The evidence establishes that the employer, although he changed from providing a disposable type of ear plug to a reusable type, continued to provide hearing protection which satisfied the requirements of Regulation 144 of the act. Mr. Doupagne testified that he could not obtain a proper fit in the left ear canal with the reusable type and was being subjected to a higher noise level than with the disposable plugs. He testified that he informed Mr. Tenage of this problem. Mr. Tenage testified that he was never informed of the difficulty with respect to proper fit but rather, it is his evidence that Mr. Doupagne took the position, on the basis of his misunderstanding of the decibel rating, that the reusable plugs were inferior. His evidence in this regard was corroborated by Mr. Smith. Regardless of whose evidence we accept with respect to what was said between Mr. Doupagne and Mr. Tenage, and we prefer that of Mr. Tenage, the fact remains that prior to reporting to his supervisor, or in any way making the company aware of his difficulty with the reusable ear plugs, Mr. Doupagne took it upon himself to demand a supply of the disposable ear plugs from the store clerk and to use the disposable type contrary to the instructions he had been given.

24. There is nothing in the Act which entitles an employee to disregard the instructions of management by declining to use or wear the protective devices supplied and, on his own initiative, substituting a different type of protective device. As we have observed, a worker is under a duty to report the absence of or defects in protective devices. Furthermore, a worker is entitled to refuse to work where he has reason to believe that he may endanger himself or a fellow worker. Mr. Doupagne did none of these things. He took matters into his own hands and in so doing did not act in compliance with the Act.

25. The complainant relies in part on Regulation 83 which stipulates that a worker required to wear or use any protective device shall be instructed and trained in its care and use before wearing it. The union argues that under this regulation it was incumbent upon the employer to test Mr. Doupagne in order to satisfy itself that the ear plugs it had issued were effective and, having failed to do so, it cannot discipline Mr. Doupagne for securing ear plugs which were effective. Even if it could be said, which it cannot, that failure to comply with Regulation 83 allows an employee to act in a manner not contemplated by the Act and to claim the protections of the Act, we do not accept that Regulation 83 requires a company to perform the type of testing suggested by the union in this case. Having satisfied itself with respect to the decibel rating, the regulation, as we interpret it, would require the employer to instruct his employees with respect to how to insert the ear plugs and maintain them in a sanitary state. If the plugs proved ineffective, as claimed by Mr. Doupagne, it was incumbent upon him to report his concern to his employer and not to work in a manner that may have endangered himself. For the reasons enunciated in paragraphs 15 and 16 herein, even if Mr. Doupagne genuinely felt his health and safety threatened, he was required to report his concern or refuse to work in accord with section 23 of the Act. If he had done so, the company may have been required to carry out the testing suggested by the complainant. Indeed, if the procedures contemplated by the Act had been followed, independent evidence with respect to the effectiveness of the ear plugs when worn by Mr. Doupagne may have been obtained which may have made it unnecessary to litigate. However, Mr. Doupagne took matters into his own hands and in so doing did not act in compliance with the Act. He acted contrary to the instructions of his employer and was properly disciplined for his insubordinate attitude. Accordingly, his complaint that he was disciplined because he acted in compliance with the Act or Regulations must fail.

26. While we may not have imposed the same discipline upon Mr. Doupagne, it is our view that the penalties imposed by the company are within the bounds of what seems just and reasonable in all the circumstances. We are not prepared to exercise our discretion under section 24(7) of the Act to substitute other penalties for those which were imposed.

27. Having regard to all of the foregoing, these complaints are hereby dismissed.

DECISION OF BOARD MEMBER C.A. BALLENTINE;

1. 1 dissent from the majority decision in this case. Section 24(5) of the Occupational Health and Safety Act, places an onus of proof on the respondent company that it did not act contrary to section 24(1) in disciplining the complainant, Walter Doupagne. I do not believe the company has discharged the onus placed on it. I believe the discipline of Doupagne was for reasons other than those stated by the company.

2. 1 am disturbed that the majority of this case has ignored some very significant evidence in finding that the complainant, Walter Doupagne, was justly disciplined for insubordination to his superiors, especially on such a very important issue as Occupational Health and Safety. The evidence clearly showed that Mr. Doupagne had been carrying on a campaign for over two years to obtain proper protection from smoke and noise in his work area.

3. Morris Barber, an M-l Mechanic and Safety Committee Chairman for 2½ years, was the company's first witness. He have evidence that Doupagne complained about smoke 2½ years ago when he first became Safety Chairman. He said the company brought in the fans and smoke extractors because of Doupagne's complaints. Mr. Tenage, the plant superintendent, confirmed in his evidence that Doupagne had complained for a number of years about the smoke and noise as well.

4. The evidence leading up to the incident on July 21st and the 2 day suspension in confusing and contradictory. Mr. Tenage, the plant superintendent, admitted under cross-examination that he was aware that the welder, Mr. Hilts, in Doupagne's crew had been using the fan since January, 1981 - six months before July 2 1st. He also admitted he had not personally spoken to Doupagne about the fan but had relayed directions to Doupagne through the general foreman, Mr. Smith, and the group leader, Pat Watters. Mr. Smith was called by the company's counsel as a witness on September 30th, the first day of hearing. On that occasion he have evidence that he had spoken to Doupagne on June 30th and July 9th about the fan. He said, "I told him I didn't mind the fan being used, if it wasn't used to blow smoke into the smoke extractor". Mr. Smith was recalled at the January 4, 1982 hearing at which he have evidence that he had told Ron Hilts, the welder, several times that he had either to move the fan or shut it off. Mr. Smith was questioned with respect to his evidence at the first hearing. He admitted he had told Doupagne the fan could be used. There is no direct evidence from the company's witnesses that Doupagne was ever told to shut off the fan. However, the evidence is that Mr. Tenage had instructed Pat Watters the group leader, to tell Doupagne, but Mr. Watters was never called by the company to give evidence.

5. Mr. Doug Hale, a witness for the complainant on the first day of hearing on September 30, 1981, gave evidence that he met Pat Watters downtown in Georgetown, Ontario, on September 24th at about 9:30 p.m. He stated that Watters told him that if Walt Doupagne won the case at the Labour Board, the company would get him on something else. This evidence was uncontradicted by the company. They had ample opportunity to call Mr. Watters on the second day of hearing. By not calling the group leader, the company has created a very large void in discharging the onus which is placed upon it in this case.

6. Mr. Tenage, the plant superintendent, in examination-in-chief- was asked on two occasions by counsel for the company why Doupagne was suspended for two days on July 22, 1981. He replied, "because he didn't train the welder under him how to use the smoke extractor in a proper manner." Mr. Ronald Hilts, the welder involved in using the fan, was called as a witness for the complainant. He gave evidence that Doupagne had advised him on several occasions that there were complaints about his using the fan. He said about two weeks before the July 21st incident, when he was told for the first time by Pat Watters to shut off the fan, he went to Mr. Smith’s office and talked to Russell Smith and Pat Watters. He said, "I asked them how I would use the smoke extractor as there was a problem of anchoring it onto the coils. They said if it doesn't suit Tenage we will have a look at it. I went back to work hoping they would show up and give me advice. Later Russell Smith came up onto the scaffold with me. I explained that the magnet wasn't strong enough to hold the extractor on the coil and I had to use the fan to blow the smoke away. There was no suggestion at all how to use it. The next thing I knew about the situation was July 21st when I was told to shut off the fan. Mr. Hilts stated the fan hasn't been used since, but I have to come down and take more breaks." it is obvious that Doupagne had advised welder Hilts of Mr. Tenage's concerns, and it is also obvious there was direct evidence that no order was given to shut off the fan until July 2 1st, the day the Ministry of Labour's safety inspector was in the plant.

7. Considering that there wasn't a direct order given Doupagne until possibly July 20th, nor was a direct order given Ronald Hilts until July 21st, the day the inspector was on the plant premises, and considering that the condition of using the fan had existed since January, a six month period, it certainly wasn't unreasonable for Doupagne to approach the inspector to get a ruling on the issue of a fan being used. It is my belief he was exercising his rights under the Occupational Health and Safety Act to obtain a proper ruling.

8. I believed that Walter Doupagne was a pain in the neck to the company on the issue of safety protection, going back over two years. On July 21st Mr. Tanage seized upon an opportunity to put Doupagne in his place in the presence of a safety inspector, but he was very disturbed that Doupagne took it upon himself to approach the inspector on the issue of the use of the fan.

9. It is my position that the complainant, Walter Doupagne, was victimized by the company because he had been a battler for safety conditions and was exercising his right by approaching a Ministry of Labour safety inspector for advice and guidance. The two day suspension should be rescinded.

10. Turning to the second incident where Mr. Doupagne refused to wear the new type of ear plugs and was suspended for two weeks. I agree with the majority in regard to the procedures that a worker should follow when he believes that he may endanger himself or a fellow worker by using or wearing a protective device supplied by the company. Mr. Doupagne may have been at fault for not following the proper procedure when he believed that the reusable ear plugs didn't give him the same protection that the disposable type did. However, there is evidence that Doupagne brought the ear plugs issue to the attention of the Safety Chairman, Morrison Barber. Therefore, it is not exactly correct for the majority to state, as they have in paragraph 22 of the decision, that "Mr. Doupagne took matters into his own hands and in so doing did not act in compliance with the Act." Mr. Barber gave evidence that Doupagne complained that the new plugs were not as good as the old plugs. He told Doupagne he would look into it. Under cross-examination he admitted he never did report back to Doupagne. He said he later learned from the inspector that the plugs were adequate, but he was aware the company had told the employees to use the new ear plugs, but didn't know why this decision was made.

11. Under section 8(2)(c) of the Occupational Health and Safety A ct, the employer shall cause a joint health and safety committee to be established unless the Minister is satisfied that through a collective agreement a committee is in place. In the instant case the employees presently are not represented by a bargaining agent, therefore it was incumbent upon the company to structure a committee. Under section 8(6)(b) the powers of the Committee are set out. It states in part that the committee should, make recommendations to the employer and the workers for the improvement of health and safety of the workers. Mr. Barber said he volunteered to be the Safety Chairman. It was quite obvious from Mr. Barber's evidence that he lacked training and the necessary qualification to be a safety representative under the Act. It was shocking that he was so ignorant of what transpired in the plant involving safety issues. Under cross-examination by the complainant, he revealed that he never read safety reports and documents on the company bulletin board. He didn't know why the fan was used and in fact knew very little about the situation of extractors. He said he didn't know because he wasn't a welder, and of course, as previously stated, he didn't know why the company changed the ear plugs. The ignorance displayed by the Safety Committee Chairman on safety generally, reflects that guidance and instruction to the workers on safety procedures were sadly lacking in the plant.

12. Although there is no bargaining agent in this plant to represent the employees, the complainant "Mr. Doupagne" was ably represented by "Mr. Paul Falkowski" and "Mr. Ken Valentine" of the "United Steelworkers of America". I agree with the union's argument that it is incumbent upon the employer to instruct and train the employees in the use and care of any protective device that a worker is required to wear or use. This is provided for under Regulation 83 of the Act. I do not believe that the company "Baltimore Aircoil of Canada" has carried out its responsibilities in compliance with the Occupational Health and Safeti' Act and, therefore, has violated Section 24(1) of the Act.

13. I believe Walter Doupagne acted reasonably by approaching the inspector from the Safety Branch of the Ministry of Labour and taking his problem to the Safety Committee Chairman. It is not necessary that a worker "refuse to work" to obtain enforcement of the Act and in fact, where workers are not represented by a union in the plant to protect their rights, as in this case, it makes it very difficult for them to enjoy the protection of the Act as envisaged by the Legislature.

14. It is my opinion that the complainant Walter Doupagne, was unjustly disciplined. The Board should have lifted the suspension with full compensation.