[1983] OLRB Rep. August 1386
0339-83-OH Isaiah Argunen, Complainant, v. Wheeler Metal Products Ltd., Respondent
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members F. W. Murray and S. Cooke.
APPEARANCES: Isaiah Argunen on his own behalf' Jack Wheeler for the respondent.
DECISION OF THE BOARD; August 12, 1983
This is an application pursuant to section 24 of the Occupational Health and Safety Act alleging breach of sections 23, 24 and 14(2)(g).
On the day of the hearing, June 15, 1983, the Board heard Mr. Argunen particularize his complete case by way of opening statement to determine whether there was any arguable case which the respondent was required to meet. The board unanimously decided that the applicant did not have an arguable case. Our ruling was announced and explained to the applicant. Our ruling was based on the assumption that the applicant could and would succeed in proving all of the facts he asserted. No facts from the respondent were considered except those parts of its letter of June 6th with which the applicant took no issue.
Sections 23(3), section 24(1) and 14(2)(g) provide:
23 (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 thereof 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 endanger himself or another worker.
24 (1) 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.
14 (2) Without limiting the strict duty imposed by subsection (1), an employer shall,
(g) take every precaution reasonable in the circumstances for the protection of a worker.
The applicant failed to show us that the circumstances which existed when he performed one aspect of his job as a labourer “endangered” him. He stated that he expected his fellow employees to be assigned the particular duty (working on a grinder with an emory cloth instead of a stone) but that he himself could refuse to do it because of certain allergic reactions (which he described as "cold-like" symptoms) which he experienced after using the machine. The Board found that the applicant had not produced the kind of evidence which could raise an arguable case that a reasonable employee could perceive a danger to himself in the circumstances. Mr. Argunen suffered discomfort and inconvenience but this did not constitute "a danger". Also, it was clear that Mr. Argunen was exceptional in his reactions. The documents he produced indicated that the work place generally did not present a health hazard. He did not argue that the work place or the particular work he was refusing presented a hazard to all. On the evidence he could produce we found that he could not have had reason to believe he was in danger as a result of performing work on the grinder. We also found that Mr. Argunen did not take all the necessary steps to try to keep his job and put himself in a position to perform all aspects of it. He indicated that he had asked for a face mask once at the time of his refusal to work on the grinder. He received no response to his request. Over a period of some four days between the date of his work refusal (and request to have a face mask) during which time he knew clearly he was going to be terminated because of his inability to do all the aspects of his job, he never asked again that he try the job with a mask. He simply worked his time out without trying to pursue a means (he knew was available) to put himself in a position to do his total job. For all those reasons we found he had not made out a prima facie case that he had reason to believe he was likely to be “endangered” by performing the grinding function. Section 23 was intended to provide a remedy for workers in danger not for those who were physically unsuited to a job which upon reasonable evaluation presented no problems to other workers. Since he has not brought himself within section 23(3) of the Act, he was not discharged because he was acting in compliance with the Act contrary to section 24. His discharge was effected because he could not or would not perform his full range of duties.
In connection with his allegations that section 14(2)(g) of the Act has been breached, assuming without finding that this Board has jurisdiction generally to deal with all breaches of the Act pursuant to powers granted to it in section 24(3), the applicant could not establish that the employer did not take every precaution reasonable in the circumstances for the protection of the workers. We have found that on the basis of the extensive investigations and reports from the Industrial Health and Safety Branch of the Ministry of Labour, all of which were filed with us by the applicant, there was no need for protection generally because no hazards were found to exist. Even if Mr. Argunen needed special protection, i.e., a face mask, he did not give the employer a fair opportunity to provide such protection. An employee cannot stand by and let the days until termination slip by without reiterating a request which could have been not heard and without inquiring why there was no response.
For all these reasons the Board dismissed Mr. Argunen's complaint.```