Dennis Wawia v. Inco Metals Company, 1982 CanLII 902

[1982] OLRB Rep. May 681

2319-81-OH Dennis Wawia, Complainant, v. Inco Metals Company, Respondent

BEFORE: M. G. Mitchoick, Vice-Chairman, and Board Members H. J. F. Ade and H. Kobryn.

APPEARANCES: K. Valentine, D. Sweezep, Dennis Wawia and Mike Perry for the complainant; D.K. Gray and R.E. Drewe for the respondent.

DECISION OF THE BOARD; May 27, 1982

1. This is a complaint under section 24 of the Occupational Health and Safety Act, 1978, alleging that the complainant, Dennis Wawia, has been disciplined for acting in compliance with the Act.

2. Specifically, the complaint alleges that:

"On or about May 1981 the complainant was dealt with by Inco Metals Company, Bill Cranley of the respondent contrary to the provisions of section 24 of the Employee's Health and Safety Act in that he did on his own behalf of the respondent: Send Mr. Wawia home and gave him a Step 2 for invoking Bill 70...".

The respondent took the position that the complaint was not sufficiently particularized to permit it to prepare its case. The Board noted that only the date appeared to be insufficiently particularized in the complaint. The complainant explained that the incident occurred on the night shift, and he was unsure whether to indicate May 10th or 11th. The Board pointed out that either of those dates could have been used, with the words "on or about", to provide as precise an identification of the event as possible. The respondent conceded that the complainant received only one Step 2 Notice in May of 1981, and the Board stipulated that its inquiry would be confined to the events giving rise to that Step 2 Notice.

3. The respondent also took the position that the Board ought to refuse to entertain the complaint on the ground of delay. The complainant filed two grievances under his collective agreement on May 15, 1981. The final company replies were issued on August 14, 1981, and on September 17, 1981, the grievances were posted by the Steelworkers (Mr. Wawia's bargaining agent) to arbitration. The grievances were then withdrawn from arbitration by the bargaining agent on October 26, 1981, and dropped. The apparent reason for this was the sudden realization by the Bargaining Committee that the matter more properly belonged in front of the Ontario Labour Relations Board under the Occupational Health and Safety Act.

4. Just at this point in time, however, the person who occupied the position of Chairman of the Union's Health and Safety Committee resigned rather abruptly to accept employment elsewhere, and was replaced by Donald Sweezey. Mr. Sweezey then had to read through all of his predecessor's files in order to identify the status of the various matters outstanding for the members of this substantial Local. When the matter involving Mr. Wawia came to his attention, he discussed it on a couple or more occasions with officials of the company to see if it could be resolved short of going to the Labour Board. The present complaint was not actually filed with the Board until February 9, 1982.

5. Mr. Gray for the respondent points out that this is almost four months from the time the matter was withdrawn from arbitration, and nine months from the date of the incident itself, and argues that this is simply too long a delay to be countenanced.

6. Dealing with the last point first, the Board notes that a good part of the nine months was consumed y having the matter progress through the normal channels of the grievance procedure, and the Board left no doubt in Reed Limited, [1978] OLRB Rep. Jan. 1, of the importance of that taking place prior to filing a health and safety complaint with the Board. As to the delay from October 26th to the filing of this complaint, Mr. Valentine argues on behalf of the complainant that the complainant ought not to bear the loss for any fault on the part of the trade union that represented him. The Board has noted in the past, however, that a party must bear the responsibility for the acts of its authorized agents, (see Gurnam Dhanota, [1982] OLRB Rep. Jan. 113, and the cases cited therein). If the delay in this case were excessive, it would be no answer for the complainant to lay the blame on his agent. However, given the circumstances surrounding the change in leadership within the union, the efforts of Mr. Sweezey to attempt to resolve the matter, and the length of the delay itself, the Board does not find the delay in this case to be sufficient ground for declining to hear the complaint.

7. The final preliminary ground argued by the respondent is that the complainant made an election at the time that his grievance was posted to arbitration, and thereby forfeited any right he may have had to have the matter dealt with as a complaint before this Board. The respondent relies on the words of the Board in Reed Limited, supra, which discussed the inter-relationship of the alternate courses of proceeding offered to an aggrieved worker under section 24 of the Occupational Health and Safety Act. The employer in that case had argued that the filing of a grievance alone was sufficient to bar an employee from filing a complaint with the Board. The Board stated:

To adopt the approach argued by the respondent would force an employee to forego the grievance procedure entirely in order to preserve the right of recourse to the statutory procedure. Such a development, in our view, would not be desirable from an industrial relations perspective. If there exists a grievance procedure, employees should be encouraged to utilize that process before pursuing the statutory procedure. The Board, therefore, should not foreclose an employee from bringing a complaint before it simply because that employee has had his union take the matter through the grievance procedure. Once it is established, however, that the employee has authorized the union to take the matter beyond the grievance procedure to arbitration, the Board will not deal with any complaint relating to that matter. Whether the employee has chosen arbitration prior to or following the actual filing of the complaint with the Board, the Board will treat the employee as having elected arbitration, and as being bound by that election.

In that case, however, the Board was dealing only with the effect of having a "live" grievance ongoing in the grievance procedure, and the Board said that the employee had to exhaust the grievance procedure before coming to the Labour Board. The Board did not have before it the situation where the trade union, for whatever reason, declines to pursue the employee's matter all the way to arbitration.

8. The critical words of the legislation are:

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.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection I, the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply, with all necessary modifications, to the complaint.

(3) '[he Ontario Labour Relations Board may inquire into any complaint filed under subsection 2, and section 89 of the Labour Relations Act, except subsection 5, applies with all necessary modifications, as if such section, except subsection 5, is enacted in and forms part of this Act.

(emphasis added)

Mr. Gray argues that the Legislature, by the use in section 24(2) of the word "settlement", must have had in mind the full range of possibilities included in the process of arbitration, including the possibility of settlement of the grievance at the discretion of the employee's exclusive bargaining agent. Once the employee elects to place his complaint in the hands of his trade union for processing to arbitration, the normal rules of collective bargaining apply with respect to the trade union's total and unfettered right as bargaining agent (subject only to the duty of fair representation) to dispose of the grievance as it considers appropriate.

9. The Board cannot agree. The Occupational Health and Safety Act appears to stand apart in the manner in which it recognizes the rights of an individual "worker", as distinct from any other form of representative (cf., for example, section 23(4) of the Act). This point was emphasized by the Board as well in Reed Limited, beginning at paragraph 7, where it stated:

10. Our reading of the Act, and especially section [24], is that the statute contemplates that any complaint brought under it must be in essence an employee complaint. A trade union, as bargaining agent for employees, is not the beneficiary of the substantive protections provided by subsection (1) of section [24].

11. The union, although named as complainant, could only act as the agent of the named grievors, having no independent power to carry, or settle, the complaint. The complaint, therefore, would be in essence the complaint of the employee, and would be compatible with the scheme of the Act.

Mr. Gray sees the Legislature as having placed great emphasis on the word "settlement" in section 24(2). In the Board's view, however, the emphasis of the Legislature was on the word "arbitration", and the term "settlement" was simply used as another word for "determination". The "settlement", in other words, is an arbitrated one. The Board can find nothing in the statute to justify reading the reference to "arbitration" as contemplating anything other than "an adjudicative procedure", once again as noted in Reed Limited, supra, at paragraph 11.

10. The Legislature has simply said, in other words, that an aggrieved "worker" under this Act is entitled to either third-party adjudication under his collective agreement, or the opportunity to file a complaint with the Ontario Labour Relations Board. As the Board went on to note in Reed Limited, however, the employee cannot ride two horses; and once he authorizes the matter to be posted to arbitration, he cannot withdraw that authorization and insist that the matter be filed with the Board instead. Rather, the trade union at that point has the right to pursue the matter through to adjudication by arbitration if it chooses. If, as Mr. Gray argued, situations of abuse should occur as a result of this statement of the law, it is to be noted that the Legislature has not failed to provide the Board in section 24(3) with the same discretionary power to hear or not to hear a complaint as has been entrusted to the Board under section 89 of the Labour Relations Act.

11. In the present case, the trade union did not see fit to pursue the arbitration process through to an adjudication, and the preliminary objection is dismissed.

12. The matter is referred to the Registrar for continuation of hearing on the merits.```