[1983] OLRB Rep. June 940
0269-83-U Todd Bradley Lindstrom, Complainant, v. 500139 Ontario Inc. Operating as The Potato Centre, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and H. Kobryn.
APPEARANCES: Michael Izumi Nash for the complainant; Douglas Jackson for the respondent.
DECISION OF THE BOARD; June 29, 1983
1This is the complaint of Todd Bradley Lindstrom who claims that he has been dealt with contrary to section 24 of the Occupational Health and Safety Act. In order to understand the context in which this application arises it is necessary to review some of the background and the course of proceedings to date. It may also be useful to briefly review the statutory framework within which the parties' rights must be determined, for it is apparent that the respondent, at least, has been operating without a very clear understanding of its obligations as an employer or the rights of its employees.
2The Occupational Health and Safety Act is remedial legislation designed to promote safety in the work place in a variety of ways. There are regulations for hazardous materials, conditions and toxic substances. There are provisions respecting monitoring and protective devices. Employees have a duty to work safely, use the required protective equipment and report to their employer any hazardous condition of which they become aware. The employer, in turn, is under a statutory duty to ensure that the work place is safe, that hazardous situations are avoided or corrected, and that the worker himself goes about his duties in a manner which will not give rise to health and safety problems for himself or others. The Act also encourages the formation of committees in the work place to promote an awareness of safety-related issues, investigate potential problems and resolve them through discussion and joint employer-employee initiatives. Finally there are procedures for enforcement of the established safety standards and mechanisms for the investigation and resolution of disputes in the event that the employer and his employees disagree on the existence of a safety hazard. The underlying premise is that "safety is everybody's business", and the best way to avoid accidents is to deal with safety problems before they arise, and before the worker is exposed to potentially hazardous conditions.
3These themes are reflected in section 23 of the Occupational Health and Safety Act. Under section 23, a worker may refuse to work where he has reason to believe that his equipment or the condition of the work place poses a hazard. That work refusal triggers an immediate investigation by his employer and, if the problem cannot be resolved, an inspector from the Ministry of Labour must be called in. The worker cannot be discharged or otherwise penalized because he has expressed such bona fide safety concerns; moreover, he need not be proven right to have the protection of section 24. The statute puts a premium upon prudence and caution - as it must, given the variety of circumstances to which its general language could apply. Where an employee expresses such reasonable concerns, he is protected by the Act - even if he turns out to be wrong. We repeat: the statute recognizes that there can be reasonable differences of opinion about safety questions and provides a means for their resolution. An employee cannot be penalized because he refuses to perform work which he has reason to believe may be unsafe.
4The evidence in this case discloses that Mr. Lindstrom expressed his concern to his employer, was sent home, and subsequently discharged. The employer did not resort to the dispute resolution provision provided in section 23. Mr. Lindstrom then filed a complaint under section 24 of the Act alleging that he had been discharged because he had raised a safety issue as he had a right to do under section 23. That case was scheduled for hearing before this Board on April 14, 1983, but, in accordance with its usual practice, the Board appointed an Officer to meet with the parties and endeavour to effect a settlement of the matters in dispute between them. Notice of the complaint, the hearing date, and the appointment of the Board Officer were served on the respondent.
5On or about April 22, 1983, in accordance with his mandate, the Board Officer sent the parties the following telegram:
Pursuant to my appointment as Labour Relations Officer in the above matter to confer with the parties to endeavour to effect a settlement of this complaint, I shall convene a meeting of the parties Thursday, April 28th at the Board's Offices, 400 University Avenue, 4th Floor, Toronto, commencing at 10 a.m.
Mr. Lindstrom attended that meeting on his own behalf (i.e., without counsel). The respondent was represented by Douglas Jackson, the company's sales manager. Mr. Jackson also appeared without counsel for, as he told the Board much later, the company president, Douglas Taylor, did not think it was necessary to discuss the problem with a solicitor. Had the respondent sought the advice of a solicitor upon receipt of the notice of this complaint much subsequent unpleasantness might have been avoided.
6As a result of the discussions between the parties on April 28, 1983, they entered into a written settlement of Mr. Lindstrom's complaint which reads as follows:
This settlement is without prejudice to either party.
The respondent will reinstate the Complainant, Monday May 9th
1983 commencing at 6 A.M. without compensation for time lost.
- The complainant as a result of this settlement seeks leave of the board to withdraw this complaint.
Mr. Lindstrom signed the settlement on his own behalf and Mr. Jackson signed on behalf of the respondent. A day or two later, Mr. Lindstrom was advised that the respondent was not prepared to honour the settlement and give him his job back - hence, the second complaint which is now before us.
7The Occupational Health and Salety Act, like the Labour Relations Act, encourages the private resolution of disputes without recourse to litigation before this Board. The Act assumes, correctly in our view, that such private solutions are to be preferred and encouraged. That is why the Board routinely appoints a Labour Relations Officer to assist the parties in this regard. On the other hand, the Act also ensures that a settlement, once concluded, will be complied with, and provides that a failure to comply with a settlement can be dealt with and remedied in the same manner as a complaint of the Act itself. That is what the complainant urges the Board to do in the instant case.
8In view of the complainant's allegation that a settlement had not been complied with, the Board scheduled a further hearing to entertain the parties' evidence and representations on that issue. The hearing was held on June 6, 1983. Mr. Lindstrom appeared together with counsel. Once again, the respondent was represented by Douglas Jackson, its sales manager, who appeared without counsel. Mr. Jackson told the Board that, as before, he had raised the matter of taking legal advice with the company president but had been advised that it was unnecessary.
9Mr. Jackson testified that Douglas Taylor, the company president, has no