[1983] OLRB Rep. October 1759
0454-83-OH Robert Zizek, Complainant, v. Wilco Canada Inc., Respondent.
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. Murray and H. Kobryn.
APPEARANCES: Jerry Flynn, Larry Gauthier and Robert Zizek for the complainant; Robert B. Wilson for the respondent.
DECISION OF THE BOARD; October 27, 1983
This is a complaint under section 24 of the Occupational Health and Safety Act.
The respondent employer operates a plant in the City of London. In its manufacturing process the respondent makes considerable use of lead. Lead is highly toxic, and excessive exposure to air borne lead can result in serious illness. The complainant, Mr. Robert Zizek, is employed by the respondent as a tube mill assistant. As part of his job, Mr. Zizek is at times required to go into the "lead pot", where the risk of inhaling air borne lead is particularly great. On February 1, 1983 an "air hat" which the respondent had specified must be worn in the lead pot was not available, and Mr. Zizek was directed to instead perform the work wearing a small face mask and a face shield which would afford him less protection. Mr. Zizek refused this direction and in consequence was suspended for three days. It is Mr. Zizek's contention that the respondent disciplined him for refusing to perform work he reasonably believed to be unsafe, and that by so doing the respondent contravened the terms of the Act. Mr. Zizek now seeks to be compensated for the three days that he was suspended, and to have any reference to his suspension removed from his personnel file. The respondent for its part contends that Mr. Zizek's refusal to do the work involved was not motivated by any health or safety concerns, but only by an unjustified fear of being disciplined for not wearing the air hat. Accordingly, contends the respondent, Mr. Zizek's refusal to do the work was not protected by the Act.
The relevant provisions of the Act are set out below:
"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.
(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of his refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker, and if there is such, in the presence of one of,
(a) a committee member who represents workers, if any;
(b) a health and safety representative, if any; or
(c) a worker who because of his knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them, who shall be made available and who shall attend without delay.
(5) Until the investigation is completed, the worker shall remain in a safe place near his work station.
(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,
(a) the equipment, machine, device or thing that was the cause of his refusal to work or do particular work continues to be likely to endanger himself or another worker;
(b) the physical condition of the work place or the part thereof in which he works continues to be 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 continues to be likely to endanger himself or another worker,
the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.
(7) An inspector shall investigate the refusal to work in the presence of the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4)(a), (b) or (c).
(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the work place or part thereof is likely to endanger the worker or another person.
(9) The inspector shall give his decision, in writing, as soon as practicable, to the employer, the work, and, if there is such, the person mentioned in clause (4)(a), (b) or (c).
(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his work station during his normal working hours unless the employer, subject to the provisions of a collective agreement, if any,
(a) assigns the worker, reasonable alternative work during such hours; or
(b) subject to section 24, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker."
"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 (1), 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) The 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."
Mr. Zizek's testimony indicates that he commenced his employment with the respondent towards the end of 1981. At the time, there was a growing concern among both the respondent's management and officials of the Ministry of Labour's Occupational Health Branch with the extent to which employees were being exposed to air borne lead. In November and December of 1981, management posted notices to employees dealing with lead exposure in which management voiced a concern with the fact that many employees were not following established procedures designed to limit the risk of excessive exposure.
In early 1982, a medical consultant with the Occupational Health Branch advised the respondent that employees were being exposed to excessive amounts of lead. The respondent then sought the assistance of the Industrial Accident Prevention Association of Ontario. The association concluded that the excessive exposure of employees to lead was the result of both the procedures being utilized by the respondent, as well as the improper use of equipment by employees.
On April 5, 1982, Mr. G.R. Wilson, the respondent's president, issued the following notice to employees. Among other matters, the notice acknowledged that a number of employees had received lead poisoning. We gather that the employees involved were placed on Workmen's Compensation.
"NOTICE TO EMPLOYEES
Dear Employee:
I want to assure you, that I am personally concerned for those employees who received Lead Poisoning. These conditions should never occur, as it is the responsibility of Management and Supervision along with yourself that you wear proper protection glasses, respiratory masks around the lead furnaces and that you ensure that the area is clean and fumes are not escaping from furnaces.
Under "NO" Circumstances are you to work in unsafe conditions that will affect your health. Wearing the proper equipment supplied, maintaining a clean environment and ensuring that "Your" personal hygiene, both to and from the job, at breaks and in the Company cafeteria, will ensure you and your family that a safe environment and work place is had.
I am directing strict and tough disciplinary actions for Employees, Management or Supervision who work or direct Unsafe and Unhealthy work conditions and also do not maintain good levels of Personal Hygiene.
Both Management and Employee's have a responsibility to themselves and to Government legislation to work and perform in a safe and healthy work environment.
Be assured that recent Press quotes on "Plant Closures" will NOT take place as this office intends to ensure you, the Employee, and Government that good safe and healthy work conditions prevail."
At some point during 1982, (the exact date was not referred to in evidence), it became a requirement that employees have their urine tested for lead on a monthly basis. The frequency of the tests was later increased to once a week.
Until mid 1982 employees working in the lead pot wore a small face mask (3 M #9920 dust/fume/mist respirator) and covering shield. On or about June 25, 1982 the Occupational Health Branch directed that employees working inside the respondent's furnaces (which apparently included the lead pot) be supplied with a powered air purifying respirator. A copy of this direction was not filed with the Board. In response to the direction the respondent acquired a 3-M "air hat" or "respirator helmet" model #W2940. The air hat completely covers an employee's head, and is equipped with a battery powered air pump and filter. On or about November 23, 1982, the following memo from Mr. F. Tchorek, the respondent's safety co-ordinator, was posted on the respondent's bulletin boards:
"The Ministry of Labour will be collecting air samples for the next three working days. Two points were brought to our attention by the technicians.
A.) The 3 M air hat must be worn by all personnel who are required to open the doors of the lead ovens, for whatever reason. This is by the orders of the ministry as a result of the last air monitoring.
B.) All personnel who are in the lead toxic area are required to wear the 3 M 9920 masks properly as shown on instructions. This includes people just walking through the area. This is an internal procedure and must be adhered to.
Please ensure that these procedures are being strictly adhered to, and remind all personnel that it is for their own benefit and well being and not ours.
Thank you for your co-operation in this matter."
- Throughout 1982 the company had experienced an on-going problem in getting employees to properly follow safety rules, including rules about wearing proper safety equipment. This problem was highlighted by a report released in January of 1983 indicating that on November 23, 24 and 29, 1982 officials of the Occupational Health Branch had observed a number of the respondent's employees breaching company rules about wearing appropriate equipment. Mr. Zizek was one of these employees. On a number of occasions, he had been seen wearing a small face mask instead of the air hat, and at other times improperly wearing a face mask. On November 23, 1982, prior to release of the report of the Occupational Health Branch, Mr. Zizek was given a written warning by the respondent for not wearing the proper protective equipment while working in the lead pot. We gather that management had observed Mr. Zizek working in the lead pot wearing only a small mask and face shield instead of the air hat. The warning given to Mr. Zizek read as follows:
"Contrary to plant General Rules Section 1 Page 26 and Plant Safety Rules Section 11 Page 31 did not wear proper protective equipment when working in lead pot."
- On November 29, 1982, Mr. L. Brush, the respondent's manufacturing manager, had the following notice posted on the respondent's bulletin boards:
"It is evident that there is still an unsatisfactory level of enforcement of health and safety regulations, particularly in the London Plant, and especially at the back end of the Tube Mills.
Three times in the last three weeks I have personally observed people not wearing or not properly wearing protective apparel at the back end of the Tube Mills, and I haven't been in the area on a regular basis by any means. In each case, the instance was brought to the attention of the supervisor (S. Goodbrand — twice; A. Simoes — once). Furthermore, some people are not wearing smocks or coveralls as and where designated (Wilcote, Fabrication areas, including Quality Assurance personnel). In addition, there are too many minor accidents or injuries due to carelessness or failure to follow operating procedures.
There is absolutely no excuse for these continued violations of the regulations. All personnel have been well and thoroughly informed of the regulations, the rationale behind them, and the need for their enforcement. People are our most important asset and their health and safety must be protected, whether they like it or not. Adherence to the health and safety regulations is a condition of employment and is to be strictly enforced.
Since words alone have not achieved the necessary results, the following procedure is in effect immediately. All personnel, including supervisors for non-enforcement, are to be verbally corrected and counselled on the first occurrence, written up the second time, suspended the third, and terminated the fourth. There are to be no exceptions, other than blatant disregard for the regulations which could result in immediate discipline up to and including discharge."
- On January 12, 1983 Mr. Zizek was given a verbal warning, for wearing a small face mask into the lead pot instead of the air hat. The warning, although verbal, was recorded on a warning form which Mr. Zizek was required to sign. The form stated, in part, as follows:
"Reason for warnings, suspension or termination:
not wearing protective face mask with respirator when going into lead pot. This is a safety hazard and will not be tolerated."
This was the last time that Mr. Zizek failed to wear the air hat when working in the lead pot. At the hearing, Mr. Zizek testified that due to a concern for his health, on a number of subsequent occasions when the air hat was not available, he declined to go into the lead pot area, but instead arranged to have a fellow employee do the work.
The events giving rise to these proceedings occurred on the midnight shift on February 1, 1983. On the previous day the air hat had been taken out to be repaired and was not available. Mr. G. Jamieson, an employee member of the plant health and safety committee who had been on the shift previous to the one worked by Mr. Zizek, testified that due to the unavailability of the air hat he had refused to go into the lead pot and had not been disciplined for doing so. According to Mr. Jamieson, at the end of his shift he advised Mr. Zizek of his refusal to go into the lead pot and indicated that Mr. Zizek would be wise to follow his example.
At the start of Mr. Zizek's shift, Mr. William Barnes, the respondent's production supervisor, who also served as the chairman of the respondent's health and safety committee, directed a lead hand to advise the employees that the air hat was being repaired and that, accordingly, they would be required to go into the lead pot wearing a small face mask and shield. Mr. Zizek advised the lead hand that he would not do so. Eventually Mr. Zizek and Mr. Barnes met in Mr. Barnes' office to discuss the matter.
During the course of a shift, an employee might normally be required to work in the lead pot four or five times for about seven minutes each time. On the day in question, however, Mr. Barnes advised Mr. Zizek that due to the lack of the air hat the work would be rotated among a number of employees, and that in these circumstances, since it was only being done on a temporary basis, it would be safe for him to wear only a face mask and shield. Mr. Zizek's response was that he would not go into the lead pot without the air hat. There was some discrepancy in the testimony concerning the remainder of the conversation. Mr. Barnes testified that Mr. Zizek explained his refusal by stating that he had already been written up twice for not wearing the air hat, and that he did not want to be written up again. According to Mr. Barnes, at no time did Mr. Zizek say that he was concerned for his health. For his part, Mr. Zizek testified he had understood that if he went into the lead pot again without wearing the air hat he might be suspended or fired, and he remarked on this to Mr. Barnes, but that in addition he also told Mr. Barnes that he would not do the work because of health concerns.
As already noted, Mr. Zizek's refusal to go into the lead pot resulted in him being sent home and given a three day suspension. Mr. Zizek was advised of his suspension by way of a copy of the following memorandum to his personnel file written by Mr. L. Brush, the respondent's manufacturing manager:
"Sent home for balance of shift February 1, 1983 for refusal to service lead oven using standard face mask versus respirator helmet, and hence refusing a direct order.
Employee objected on grounds he had been disciplined twice recently (Nov. 23/82 & Jan. 12/83) for not wearing the helmet and hence to service the oven without the helmet was an unsafe act.
The helmet was not available for use on part of the employee's shift because it was removed for repairs.
Continued servicing of the oven without the helmet is unsafe in that blood lead content levels will eventually rise to unsafe levels. However, use of the mask only is not unsafe if this is done only rarely and not on a continuing basis.
The employee had to be forced to use the helmet in the first place and thus cannot be overly concerned for his health. Nevertheless, the company rule is that the helmet is to be used on a continuing basis; masks only being used in emergencies, e.g. breakdown of the helmet, and, when used as such, is not an unsafe act.
The employee should have followed the supervisor's orders and grieved later.
The employee is subject to discipline including discharge.
The employee is suspended for three (3) days, including the shift during which he was sent home."
As a result of his being sent home, the grievor contacted the London office of the Occupational Health and Safety Division of the Ministry of Labour, which sent out an inspector to investigate the matter. In a written report, the inspector concluded that "the work assigned to Mr. Zizek was likely to endanger him".
Before the Board Mr. Zizek testified that one of the reasons why he had refused to work in the lead pot without the air hat was a concern for his health. Respondent's counsel contended that no weight should be given to this testimony, and in this regard he noted that in the past Mr. Zizek had gone into the lead pot without the air hat even when it was available. Counsel also contended that the work was in fact safe, and it would have been unreasonable for Mr. Zizek to believe otherwise. In this regard, Counsel noted that Mr. Barnes had advised Mr. Zizek that the work was safe, and that Mr. Barnes was the chairman of the respondent's health and safety committee. The respondent's counsel also relied on a document issued by the Occupational Health Branch on January 21, 1982 setting out certain maximum permissible levels of exposure to concentrations of air borne lead. It was counsel's contention that these maximum concentrations would not have been exceeded if Mr. Zizek had done the work without the air hat. Both Mr. Frank Tchorek, the respondent's safety director, and Mr. Barnes testified that they believed that the January 21, 1982 document had been posted at the relevant time, although they were not positive that such had been the case. Mr. Zizek testified that even if the document had been posted, he had been unaware of the part being relied on by the respondent. It is clear that on February 1, 1983, Mr. Barnes in his discussions with Mr. Zizek did not refer to the January 21, 1982 document. At the hearing, the respondent filed a report from a medical consultant with the Occupational Health Branch dated January 21, 1981, which we gather is the document in question. The report sets out certain acceptable levels of maximum exposure of employees to air borne lead and also refers to the use of respiratory equipment. The report does not, however, specifically refer to the type of equipment that should be worn in the lead pot.
When sections 23 and 24 of the Occupation Health and Safety Act are read together, it is clear that an employee who has reasonable cause to believe that working conditions are unsafe has the right to refuse to work, and as long as his refusal conforms to the conditions of the Act, he may not be disciplined. Where the conditions set out in the Act have been met, an employee is not under an obligation to "obey now and grieve later" as suggested by Mr. Brush in his memorandum suspending Mr. Zizek for three days. Instead, the employee is legally entitled to refuse to perform the work.
As the Board noted in the Inco Metals Ltd. case [1980] OLRB Rep. July 981, the right of an employee to refuse work does not depend on whether there is in fact any danger to his health or safety. The question is whether at the time an employee refuses to perform work he has reasonable cause to believe that it is unsafe to do so. On the evidence, we are led to conclude that Mr. Zizek would have had reasonable grounds for believing that to work in the lead pot without the air hat would have been unsafe. In this regard, there had been a number of warnings to employees about the dangers of excessive exposure to lead, and several employees had actually contacted lead poisoning. On or about November 23, 1982 the respondent had posted a notice indicating that the Ministry of Labour had ordered the wearing of the air hat, and on the same day Mr. Zizek had been disciplined for not doing so. On November 29, 1982 Mr. Brush had posted a notice setting out a procedure under which employees and supervisors who did not follow or enforce rules regarding the wearing of proper safety apparel would be disciplined up to and including discharge. In accordance with this procedure, on June 12, 1983 Mr. Zizek had again been disciplined for not wearing the air hat this time with the express comment that he had committed a "safety hazard (that) will not be tolerated". All of these events would have led a reasonable employee to conclude that working in the lead pot without the air hat was unsafe. In reaching our determination that Mr. Zizek would have had reasonable grounds for believing the work to be unsafe, we have not given much weight to the fact that Mr. Barnes, the chairman of the health and safety committee, told Mr. Zizek that the work was safe, since at the relevant time Mr. Barnes was clearly acting only in his capacity as the respondent's production manager. In addition, Mr. Jamieson, an employee member of the health and safety committee, had already recommended to Mr. Zizek that he not go into the lead pot. We have also not given much weight to the January 21, 1982 report of the medical consultant with the Occupational Health Branch. Even if Mr. Zizek had read the document, because of the manner in which it was written, it would not likely have been of much assistance to him in assessing what equipment was appropriate for the lead pot. In addition, the Occupational Health Branch's direction that an air hat be worn in the lead pot was issued in June of 1982, subsequent to the January 21st report.
Not only did Mr. Zizek have reasonable grounds for believing it would be dangerous to go into the lead pot without the air hat, but we accept his evidence that this is what in fact motivated his refusal to do so. While Mr. Zizek had on earlier occasions failed to wear the air hat when it was available, we find it quite reasonable and accept his evidence that in the period leading up to February 1, 1983, he had developed a heightened concern about the problem of lead poisoning. In this regard, he was no different than both the Occupational Health Branch and the respondent, both of which were apparently becoming ever more concerned about the effect of lead on the respondent's employees. Given this growing concern and the respondent's continuing attempts to raise the consciousness of employees such as Mr. Zizek to the problems associated with exposure to lead and the need to wear proper protective equipment, it was quite reasonable for Mr. Zizek to being to demonstrate a heightened concern for this own health.
Having regard to the above, we are satisfied that pursuant to section 23(3) of the not wearing the air hat. We do not believe that at the hearing either gentleman was seeking to mislead the Board it would endanger his health. Section 23(4) indicates that upon refusing to do particular work, an employee is to report the circumstances of his refusal to his employer or supervisor. As already noted, it is Mr. Zizek's contention that he explained to Mr. Barnes that concern for his health was part of the reason for refusing to do the work, whereas Mr. Barnes testified that Mr. Zizek referred only to a concern that he might again be disciplined for not wearing the air hat. We do not believe that at the hearing either gentleman was seeking to mislead the Board. Rather, both were trying to recall as accurately as possible what it was that was said. On balance, we have decided that Mr. Zizek's recollection of what was said to be the more accurate. We base this decision in large measure upon the memorandum dated February 1, 1983 written by Mr. Brush, the manufacturing manager. Mr. Brush was not directly involved in the events in question, and it is reasonable to infer that his information concerning what occurred came from Mr. Barnes at a time when the events were still fresh in Mr. Barnes' mind. Part of the memorandum (which is quoted above in full) states:
"Employee objected on grounds he had been disciplined twice recently (Nov. 23/82 & Jan. 12/83) for not wearing the helmet and hence to service the oven without the helmet was an unsafe act."
(emphasis added)
This statement leads us to conclude that Mr. Zizek did in fact mention his safety concerns to Mr. Barnes when refusing to perform the work in question, and that accordingly, his refusal met all of the requirements set out in the Act.
Section 23 stipulates that when an employee refuses to work, the employer is to investigate the refusal in the presence of the employee and one of the people referred in subsection (4). This was not done. Rather, Mr. Zizek was sent home. Mr. Barnes testified that Mr. Zizek was sent home because there was no other work available for him. We have some difficulty with this contention in that Mr. Zizek had only been expected to spend a relatively small part of his shift in the lead pot. Further, in accordance with the terms of the Act, the respondent, rather than sending Mr. Zizek home, should have conducted an investigation into the matter in Mr. Zizek's presence, for which time he would have been entitled to be paid. In addition, Mr. Brush's memorandum indicates that the respondent characterized the February 1st shift as being part of Mr. Zizek's suspension for refusing to work in the lead pot and not the result of the unavailability of any work. Given these considerations, we are led to conclude that the respondent did not have proper grounds for sending Mr. Zizek home on February 1, 1983. We are also satisfied that the respondent's action in suspending Mr. Zizek was in violation of section 24(1) of the Act. In the result, the respondent is directed to compensate Mr. Zizek for his three day suspension, and to remove any reference to the suspension from Mr. Zizek's personnel file.
The Board will remain seized of this matter in the event there is any disagreement as to the amount of compensation payable to Mr. Zizek.