[1982] OLRB Rep. May 649
1263-81-OH Brenda B. Beattie, Complainant, v. Auto Jobbers Warehouse Ltd., Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members J.A. Ronson and F. Cooke.
APPEARANCES: Brenda E. Beattie for the complainant, Lisa McCullough for the respondent.
DECISION OF VICE-CHAIRMAN IAN SPRINGATE, AND BOARD MEMBER F. COOKE; May 5, 1982
This is a complaint under section 24 of the Occupational Health and Safety Act. In a decision dated December 29, 1981, the Board concluded that the complainant, Miss Brenda Beattie, had been dismissed contrary to section 24(1) of the Act in that she had been dismissed for refusing to drive a vehicle which she reasonably believed to be unsafe. The Board directed that the respondent compensate Miss Beattie. The matter was subsequently relisted for hearing to deal with a request from the respondent that the Board reconsider its decision of December 29, 1981, and also to settle the amount of compensation owing to Miss Beattie.
In large measure the request for reconsideration is based upon the submission that the respondent should have been able to rely on the report of an inspector called in by Miss Beattie after she had been laid-off. The inspector in his report stated that "no violations of the Act were noted". As we indicated in our decision of December 29, 1981, one would generally expect that the report of an inspector would settle a matter such as this. Such was not the case here, however. The evidence led before us indicated that in the presence of Miss Beattie the inspector did not carry out any meaningful investigation of the vehicle. Accordingly, we concluded that Miss Beattie's reasonable belief that the vehicle was unsafe was not made any less reasonable by the release of the inspector's report. It is indeed unfortunate if the respondent felt that it could rely totally on the inspector's report. However, sections 23 and 24 of the Act are clearly meant to provide protection to employees who refuse to operate equipment they believe to be unsafe. The actions of the inspector cannot, in our view, serve to deprive Miss Beattie of the protections of those sections. In addition, in that Miss Beattie filed her complaint subsequent to the release of the inspector's report, the respondent should have been on notice that Miss Beattie was adopting the position that the inspector's report was not determinative of the matter. Given those considerations, we are not prepared to vary or revoke our decision of December 29, 1981, in response to the claim that the respondent should have been able to rely on the inspector's report.
Although the respondent was represented by counsel at the hearing into the request for reconsideration, it was not represented by counsel when Miss Beattie's complaint was heard on its merits. In support of the request for reconsideration, counsel submitted that during the initial hearing the Board had not been appraised of the true facts relevant to the proceedings, and accordingly the respondent now desired to put certain additional evidence before the Board. Counsel submitted that the Board should entertain this additional evidence in that the respondent had not felt a need to retain counsel prior to the initial hearing primarily because of its belief that it could rely on the report of the inspector. We are unable to accept this submission. The parties were advised that the initial hearing was for the purpose of hearing the evidence and representations of the parties with respect to the complaint. Further, it is not contended that the evidence the respondent now seeks to call was not available to it at the time of the initial hearing. Prior to the initial hearing, the respondent apparently did an assessment of the merits of the complaint and, on the basis of that assessment, decided not to retain counsel. In our view it is not open for the respondent to now seek to have the matter relitigated this time with the assistance of counsel. We do not believe that the Board's reconsideration power was intended to be exercised for the purpose of permitting a party to repair the deficiencies of its case. Indeed, if such were the practice, proceedings before the Board would be interminable and decisions inconclusive.
The respondent's final grounds for seeking reconsideration, and the opportunity to lead additional evidence, is based on a claim that one of the Board's Labour Relations Officers advised Mr. Vandenberg, an official of the respondent, that Miss Beattie had a very poor case. At the hearing, counsel for the respondent contended that it was in part due to this comment that the respondent did not retain counsel and did not prepare fully for the hearing, in consequence of which not all of the relevant facts were put before the Board. Upon the filing of the complaint the Board, in accordance with its practice in such matters, appointed an officer to endeavour to effect a settlement of the complaint. The Board's long standing practice is to treat settlement discussions between its officers and the parties to a complaint as privileged and confidential, and not to entertain evidence with respect to those discussions. This is done with a view to protecting the integrity of the settlement process and encouraging parties to engage in frank settlement discussions free from concerns that statements made during those discussions might subsequently become known to the Board panel hearing the case on its merits. In the instant case, we are satisfied that it would not be practicable to try to deal with the alleged statement by the officer in isolation from the remainder of the settlement discussions since the context within which the alleged statement was made would also be relevant to the contention being advanced by the respondent. For example, if the matter was gone into and it appeared that the alleged statement was in fact made, but that it was made in whole or in part on the basis of information supplied by the respondent to the Officer, one would be hard pressed to keep out evidence as to what it was that the respondent told the Officer. Further, in order to assess the reasonableness of the respondent relying on the Officer's opinion as to the merits of Miss Beattie's case, one would want to know whether the Officer advised the respondent of how Miss Beattie viewed the matter. Also relevant would be whether, on the basis of later discussions with both sides, the Officer gave the respondent a revised estimate of the merits of the case. By the conclusion of a hearing into these and other related issues connected to the alleged statement, it is highly likely that practically all of the settlement discussions would have been gone into. In our view, the result would be to effectively destroy the privilege attaching to settlement discussions with an officer. As of yet, the Board has not heard any evidence as to whether or not the Officer actually made the comment complained of, and we are satisfied that the respondent should not be given an opportunity’s to adduce any such evidence.
Before leaving this matter, it is to be noted that the terms of the Officer's appointment, together with the formal Notice of Hearing, put both parties on notice that the Officer's role was limited to the settlement process, and that if no settlement could be reached, a hearing would be held before the Board for the purpose of hearing the evidence and representations of the parties with respect to the complaint. Accordingly, the respondent should have been aware that once the matter was put before the Board for a determination, the opinions of the Officer would not be of any relevance.
Having regard to our reasoning set out above, we decline to revoke or vary our decision of December 29, 1981.
As for the amount of compensation payable to Miss Beattie, both parties agreed that the amount involved would be in the area of $2,000.00, and that the Board should calculate the actual amount. On the material before us, we fix the amount including interest, at $2,133.00. Accordingly, we direct the respondent to now pay Miss Beattie the sum of $2,133.00.
DECISION OF BOARD MEMBER JAMES A. RONSON;
The complainant, Ms. Beattie, drove a delivery truck for the respondent employer. She returned the truck to the employer's yard one day and complained that the windshield wipers and the brakes on the vehicle did not work properly. She refused to drive the truck because it was unsafe. The employer said the truck was safe, and, in the face of Ms. Beattie's refusal, sent her home.
In due course, an inspector from the Ministry of Labour came out to inspect the truck pursuant to the provisions of the Occupational Health and Safety Act. Following his attendance the inspector issued a report which contained the statement, "No contraventions of the Act were noted." Unfortunately the inspection was not carried out in compliance with section 23 of the Occupational Health and Sqfety Act, but the employer did not know that or of the consequences. It relied on the report as vindicating its position from the outset.
Ms. Beattie also stuck to her guns. Nothing had happened to convince her that the truck was safe to drive, so she still refused to drive it and remained at home. She remained off work for more than three months before bringing her complaint to this Board. Following a hearing at which neither party was represented by counsel, the Board awarded Ms. Beattie some eight weeks wages by way of damages as against her employer.
Needless to say the employer was upset at the award made against it as a result of circumstances which it considered quite beyond its control. It retained counsel and requested a reconsideration. The request for reconsideration reads:
"I have been retained by Auto Jobbers Warehouse Ltd. regarding this matter. After having carefully reviewed the decision of the Ontario Labour Relations Board, dated December 29, 1981, and in view of Section 106(1) of The Labour Relations Act, I would like to make several submissions to you at this time.
My client would like this decision re-considered on the basis of four issues. The first issue is that of the inspection of the motor vehicle by the employer in the presence of Brenda Beattie. The second issue is that of Miss Beattie's being laid off. The third issue is that of the actions of the inspector from the Ministry of Labour's Occupational Health and Safety Division. The fourth issue is that of the reliance of Auto Jobbers on the information obtained from the Labour Relations Officer.
According to Section 23(4) of the Occupational Health and Safety Act, the employer must investigate the employee's report in the presence of the employee. This was done with respect to the windshield wipers.
In fact, Miss Beattie was still in her vehicle when Siegried Rogge, a Class A Mechanic, fixed the wipers on the truck. This took only a few minutes as only a wire had come off and he merely put it back on. With respect to the brakes, they were new and Mr. Jack Vandenberg immediately took the vehicle out on the road and found nothing wrong with the brakes. It is admitted that Mr. Vandenberg cannot remember whether Miss Beattie actually saw him take out the vehicle. As a result of this lack of memory, it is conceded that Section 23(4) could have been breached with respect to the brakes.
The issue of being laid off as a result of the refusal to work has been totally misunderstood. Miss Beattie returned to the Respondent's premises after having been off for approximately 4 weeks as a result of a back problem, which was not related to the job. When she returned, she was offered the old truck which she had driven previously, but she could not drive it because she could not lift the heavy objects involved. There were several witnesses present when this offer was made. With respect to the statements that there were several junior employees working and one summer student, this is totally untrue. There was one junior employee who was driving a truck which required heavy articles to be picked up. Also, there was one summer student. However, this summer student had been hired every year for 4 years, when the most senior driver, a senior pensioner, left on his vacation every summer. Miss Beattie had been employed for less than one year, and this student had been returning every year for 4 years.
Due to her back condition, there simply was not any alternative that the company could offer her at this time. Miss Beattie phoned the offices of Auto Jobbers herself, on or about August 20, 1981, and asked for her severance pay and vacation pay because she stated that she was going out west to become a pilot truck driver in Edmonton. Thus, she was not dismissed because of her refusal to work, as she already had another job.
The third issue is that of the inspector who came and wrote out a report stating that there were no contraventions of the Act, to be noted in this case. One cannot dismiss the comment of the Vice-Chairman in this decision who stated:
'One would expect that the report of an inspector would settle a matter such as this.'
If an employer cannot listen to the advice of an inspector who is employed by the Occupational Health and Safety Division, then where lies his remedy? It appears that the Board's interpretation of the inspector's function in the Occupational Health and Safety Act is so patently unreasonable that it could be a case for judicial review. As Justice Reid pointed out in Re Hughes Boat Works Inc. and UA W 1979 CanLII 1853 (ON HCJ), 26 OR. (2d) 420, at page 432:
'It must be a matter of real significance to a tribunal whether a possible interpretation leads to practical or impractical consequences in the field of activity it is called on to supervise.
If the employer cannot rely on the inspector sent out by the Ministry of Labour, then the consequences of this legislation would be totally impractical, because the employer would constantly have to "second guess" the report of the inspector.
The Board indicated in its decision in paragraph 13 that there had been no meaningful inspection of the vehicle. It is totally unreasonable that the employer should be responsible for the irresponsible actions of a government inspector. Also, this vehicle was found to be safe by this inspector and likewise by other employees who work for Auto Jobbers. The most senior employee, the pensioner mentioned above, drove this vehicle regularly, right up to the time of the incident with Ms. Beattie and Ms. Brenda Fell drove it immediately afterwards.
The fourth issue is that of the reliance by Auto Jobbers on the information that it obtained from the Ontario Labour Relations Board Officer. When (name deleted) Labour Relations Officer, was sent out to meet with Mr. Jack Vandenberg, the meeting lasted approximately 15 minutes and Mr. Vandenberg was advised that the hearing at the Labour Board would only be a mere formality because (name deleted) stated that Ms. Beattie's case was very poor and that (he! she) was doing (his! her) best to dissuade her from proceeding with it at the Labour Board. As Mr. Vandenberg is a lay person who wanted to conduct his business without incurring unnecessary legal costs, he relied on information of (name deleted) and proceeded to the hearing, which took approximately 1 / 2 hour and the result was the decision of December 29, 1981.
It must be emphasized that Ms. Beattie was not fired wrongly. In fact she informed Auto Jobbers that she had found ajob out west in August. As a result, the penalty of $2,000.00 is totally excessive and should be reconsidered under Section 106(1) of the Labour Relations Act.
Also, the action of the inspector should definitely be investigated before any further action with respect to enforcement is taken. We acknowledge receipt of your letter of January 27, 1982, and the enclosed Notice of Hearing.
Would you kindly advise us whether we may have this decision reconsidered in order that it may be varied or revoked. Employers must be able to rely on inspector's reports in order that the Occupational Health and Safety Act not be rendered worthless.
On the basis of the four issues outlined above, my client would like to have this decision of the Board re-considered at your earliest convenience. Would you kindly inform us of your intention as soon as possible.
Yours very truly,
SNOBELEN, McCULLOUGH"
In order to be fair to the reputation of the Officer, and because the majority have ruled against hearing evidence about the alleged statements, I have deleted the Officer's name.
Dealing shortly with the third issue raised in the letter, i.e., reliance on the inspector's report, the Board has held that there is no absolute protection to an employer by virtue of an inspector’s report. (See, Inco Metals Co.; Re R. Pharand, et al, [19801 OLRB Rep. July 981). It may well be that employers will have to constantly "second-guess the report of the inspector", but the Board has interpreted the Occupational Health and Safety Act to that effect.
The remaining issues raised by the letter are to my mind interrelated. The employer is saying that it relied on the statements made by the Labour Relations Officer to its detriment. It did not retain counsel to advise it of the issues which would be of concern to the Board and of the relevant evidence to be presented. Again, it was sheltering behind the inspector's report and the Officer's statements could only reinforce the employer's understanding of its legal position.
I do riot think that section 111(6) of the Act affords any protection to the Officer in this case. That section does not speak to statements made by an officer (for comparison see the protection afforded by section 111(4)). So the issue is whether the statements made by the officer during settlement discussions (if that is in fact what they were in this case) should be treated as privileged by the Board.
Settlement discussions with the involvement of a Labour Relations Officer are encouraged by the Board. They are encouraged to the extent that many complaints are delivered to the respondents personally by officers. The settlement rate in the cases before it justifies the Board's pride in the role of its officers. The officer's role is a sensitive, delicate and difficult one. Ii. is very easy for a party caught up in the heat and excitement of the dispute to hear what he or she wants to hear. It is especially so where the officer is dealing with a party unrepresented by counsel, and who may well view the officer not as a settlement officer per se, but as an extension of the Board.
Counsel for the employer submitted that the employer did not retain counsel for the first hearing because of the statements made by the Officer. In that context it seems to me to boil down to this: If the statements were in fact made as alleged, would the employer have an arguable case for a re-hearing? From what I understand of the concept of natural justice, I think it would. I would order that the employer be allowed to lead its relevant evidence concerning the allegations so that the Board may proceed to determine if the employer was accorded a fault and fair hearing.