[1984] OLRB Rep. November 1549

0121-84-OH Gerald P. Blame, Complainant, v. Bill's Country Meats Ltd., and Rienes Steenhuis, Respondents

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members J. A. Ronson and E. G. Theobald.

APPEARANCES: Mark Grossman, Calvin Nixon and Gerry Blame for the complainant; Cameron D. Trotter, Bill (Rienes) Steenhuis, Tom Vollmer, Sam Song and Steve Lantz for the respondents.

DECISION OF THE BOARD; October 31, 1984

1. This is an application made pursuant to section 24 of the Occupational Health and Safety Act which alleges that the complainant was dismissed from his employ with the respondent, Bill's Country Meats Ltd., because of his refusal to do particular work where he had reason to believe that the operation of a circular saw in the splitting of hogs was a danger to his safety.

2. The respondent, Bill's Country Meats Ltd., (hereinafter referred to as "Country Meats") is a meat processing plant and abattoir in the Township of Merryborough. The operation includes the killing of live animals, together with scalding, scraping, gutting, splitting, cooling and cutting up of the carcasses. Country Meats is owned and operated by the respondent, Rienes Steenhuis. Gerald Blame was employed at Country Meats between May of 1983 until November 25, 1983. Mr. Blame was advised by Mr. Steenhuis it was not "an operation of specifics" and while Mr. Blame felt he was hired as a meat cutter, it appears he could and did perform a number of the functions at Country Meats. Country Meats' kill floor is the hub of its operation and is where the contentious events of November 25, 1983 took place. The kill floor is a room of approximately thirty by forty-five feet and within it there were areas for knocking out and killing the animals, the scalding process, and the gutting, cutting and cleaning processes. November 25, 1983 was a "kill day". During a kill day, a live animal is introduced to the knockout box, killed and is then placed in a scalding tank. After scalding, it is moved to a table where its hide is scraped and then hung by its hind feet on hooks attached to an overhead rack which moves by rail to the elevated grating. At this point the animal is gutted by slitting open the belly from the underside of the tail area through to the neck, which is close to the floor. The carcass is then split by a saw. The splitting entails moving a saw down from the tail to the neck through the backbone of the animal. Once this is accomplished, the split carcass is then moved by rail to the cooler to await further cutting or shipment.

3. The events complained of revolve around the use of a newly installed saw which was used for the splitting of hogs. The saw was a circular saw which had been purchased by Mr. Steenhuis to replace a piston saw (reciprocal) which formerly had been used in the operations. The circular saw was not new but had been purchased from a used saw dealer. The circular saw was C.S.A. approved, presumably at the time it was manufactured, and is of the type normally used in the meat processing industry for splitting hogs. It had been installed the previous evening by the complainant and an electrician. The complainant hooked it up, putting a counterbalance in place. The counterbalance must equal the weight of the saw so that when the saw is released by the operator it does not drop to the floor. The new saw was acquired so that more carcasses could be split on a kill day than could be done with the piston saw. It is undisputed that the cutting time for one hog was reduced from 1 minute to 3-5 seconds. The piston saw consisted of a motor with a protruding blade which moved back and forth like a chain saw. In the splitting process this saw emerged somewhat through the back of the carcass. It was necessary for the carcass to be held steady by another person to ensure a straight cut.

4. The new circular saw is approximately 90 lbs. and it has a rotary action. Its blade also protrudes out the back of the carcass, but further than the old saw. The usual method of holding a carcass when using the piston saw was for the holder to grasp the hind leg and front leg of the animal on the same side. This placed the holder to the side of the saw blade approximately one foot away. We heard evidence that in other establishments where a circular saw is used, the splitting process is essentially a one — person operation. There is no necessity for another person, as in the case of a piston saw, because there is a metal bar which does the job. Indeed, at Country Meats after the November 25th incident, this usual-holding apparatus was obtained and used thereafter. Mr. Steenhuis termed this installation as having "corrected" the situation. On November 25th, the first day of the new saw's use, it was clearly necessary for 2 persons to participate in the splitting process, one holding the hog while the other did the splitting. It is clear from both the evidence of Mr. Blame and his foreman, Tom Vollmer, that when the piston saw was used, Mr. Vollmer did most of the cutting. When the old saw was used, Mr. Blame often held the carcass. On November 25th, Mr. Vollmer did the first few cuts then handed the saw over to Sam Song, a fellow employee of Mr. Blame. There was no formal introduction by anyone in management 4S to the proper use of the saw or what was expected by way of holding the pig.

5. Mr. Blame claims he refused to hold the hog if Mr. Song operated the saw. There is contradictory evidence as to Sam Song's capabilities with this new saw and it is those very capabilities which Mr. Blame claims caused him to refuse Mr. Vollmer's request on two occasions that he hold the carcass while Mr. Song cut it. According to the evidence of Mr. Blame and Calvin Nixon, a provincial meat inspector who is required to be present on a kill day, Mr. Song had difficulty in controlling the saw and both he and Mr. Blame felt that it jerked around too much. Mr. Vollmer and Mr. Steenhuis, as well as Mr. Song himself, maintained that at all times Mr. Song was an expert and competent operator of the new saw and was in full control of it. Mr. Vollmer first asked Mr. Blame to hold the carcass while Mr. Song operated the saw at approximately 11:00 a.m., four hours after the commencement of operations and the beginning of the use of the saw. Mr. Blame testified that he told Mr. Vollmer that he would not hold the hog if Mr. Song was operating the saw. He said he advised Mr. Vollmer that if Mr. Vollmer or someone else operated the saw, he would hold the carcass. Mr. Blame testified that between this refusal and Mr. Vollmer's second request Mr. Nixon, Steve Lantz (a fellow employee who had also refused) and Mr. Blame discussed how a circular saw could be made safer and the fact that splitting a hog with this saw is normally a one —man operation because a steel bar holds the pig. On the second occasion when Mr. Vollmer asked Mr. Blame to hold the carcass, Mr. Blame testified that he said no because he wanted to retain all of his fingers. Mr. Song testified that he also asked Mr. Blame, who Mr. Song felt was doing an easier job than he, to hold the hog for him and that Mr. Blame replied there was "no way" he would go "near that thing".

6. Mr. Vollmer testified that he asked Mr. Blame to hold the pig and Mr. Blame simply said "no". Mr. Vollmer said he got the same answer the second time he asked. He said he received no explanation from him as to why he refused until "later". The "later" time appears to be sometime at a break when Mr. Vollmer recalls Mr. Blame indicating that if Mr. Vollmer ran the saw, he would hold the pig. Mr. Vollmer said Mr. Blame explained to him that Mr. Song was "too light". Mr. Vollmer was asked by his own counsel whether, on November 25th, he was concerned about the safety of the saw, and his answer was that "the thought went through my mind but I wasn't afraid". Mr. Vollmer testified he had asked Steve Lantz, after Mr. Blame, to hold the hog for Mr. Song but Mr. Lantz also refused telling him that Mr. Blame and he had decided it was too dangerous a job. After Mr. Blame refused Mr. Vollmer's second request that he hold the hog for Mr. Song, Mr. Vollmer told him that if he did not want to do the work he could go home. Mr. Blame then asked Mr. Vollmer if he should go home immediately or stay the day. Mr. Vollmer gave him the option of choosing. Mr. Blame chose to stay the day. Two other employees of Country Meats who were asked by Mr. Vollmer that day to hold the hog steady agreed. Mr. Lantz, the other refuser, was not given the option of leaving or staying the rest of the day when he refused because Mr. Vollmer testified that he considered him more necessary to the operation than Mr. Blame.

7. Within half an hour of this happening, Mr. Blame encountered Mr. Steenhuis in the coffee room and, presuming that Mr. Steenhuis knew of the refusal he had made to do the work that Mr. Vollmer had assigned, simply informed Mr. Steenhuis he had been fired by Mr. Vollmer and he asked whether he should go immediately or stay the day. Mr. Steenhuis replied that he should stay the day. At the end of the day, Mr. Blame again met Mr. Steenhuis who, at that time, asked him to be sure to leave his address so that the separation certificate and cheque could be forwarded to him. Mr. Blame indicated that he was going to be coming up to pick up his cheque the following Friday. Mr. Blame indicated to the Board that the reason he wanted to pick up his cheque was to give Mr. Steenhuis a chance to change his mind. However, when he picked up his cheque, he did not plead his case as to the safety of the saw. He said nothing to Mr. Steenhuis except to ask why his separation certificate indicated he had "quit". The only other work Mr. Blame refused to do while at Country Meats was haying in connection with Mr. Steenhuis' own farm adjoining Country Meats premises. Eventually, he did do the haying work. Nevertheless, Mr. Vollmer held the opinion that Mr. Blame was a person "who worked when he wanted to", possibly because Mr. Blame did not work Mondays on a regular basis. Neither Mr. Steenhuis nor Mr. Vollmer ever disciplined or warned him that this was unacceptable, and from Mr. Blame's description, it may even have been satisfacto­ry to them. We heard evidence from both Mr. Blame and Mr. Vollmer peripheral to these events about Mr. Blame being someone who did not see his job at Country Meats as a long-lasting one because of his desire to return to outdoor work which he had previously done and evidence about his distaste for working under Mr. Vollmer's supervision. While Mr. Blame denied that there had been any actual arguments between Mr. Vollmer and him, he testified that he told Mr. Steenhuis that he was looking for another job because he did not want to "fight with Tom". Mr. Nixon commented in his evidence that Mr. Vollmer was the type of manager who wanted his orders followed with no questions asked. Undoubtedly, Mr. Blame, who was 34 years old, found this attitude irritating in Mr. Vollmer, a 22-year old. Mr. Blame also denied that he did not get along with Sam Song or that he called him racially disparaging names. He testified that Mr. Song was a very capable man except the circular saw "weighed more than he did".

8. It was Mr. Blame's opinion that the counterbalance was heavier than the saw and Mr. Song could not safely manage the saw, especially to make it go downward. Mr. Blame explained that the counterweight was not right because Mr. Steenhuis had instructed him to have it cut according to certain specifications which were not correct. Mr. Blame claimed that the new saw required the individual holding the hog to take a position behind the backbone of the animal and wrap his arms around the carcass to hold open the split in the front of the cavity of the carcass. He was asked whether he observed others actually holding the carcass on November 25th, but he was uncertain whether he had. He said the holding technique that day varied with the individual and he could not specifically recall how Mr. Vollmer himself held the pig, if at all, on November 25th. Mr. Blame candidly indicated he was not interested in how others did it. According to his conception of how he would hold the hog, he was placing himself in danger in view of Mr. Song's lack of ability to control the movements of the saw. Mr. Vollmer testified that the method for holding the hog is the same as that for the old saw. Mr. Nixon testified that the persons he observed holding the hogs on November 25th were trying every way they could.

9. Mr. Song testified that he had never before seen a saw like the new one. No one showed him how to use it, except Mr. Nixon, who intervened in the cutting process to try to demonstrate for Mr. Song more effective ways to handle the saw. Mr. Nixon testified that, prior to Mr. Blame being requested to hold the hog, he had told Mr. Steenhuis about his concerns regarding the saw's safe operation. Mr. Steenhuis recalls Mr. Nixon talking about the saw but denies Mr. Nixon told him he thought it unsafe. We prefer Mr. Nixon's recollection to Mr. Steenhuis' because Mr. Steenhuis' evidence was tinged with more self-interest than Mr. Nixon's. Mr. Nixon struck us as an objective, conscientious bystander in this situation. It is clear from the evidence that, at least between Mr. Blame, Mr. Lantz and Mr. Nixon, the safety of the holder of the carcass, while the new saw was being operated by Mr. Song, was the subject matter of some conversation prior to Mr. Blame being asked to hold the hog by Mr. Vollmer. All three appeared to have formed the impression fairly early in the day that it was unsafe to hold the hog for Mr. Song.

10. Sections 23(3), (4) and 24(1) are relevant to these proceedings. They 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.

(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;

(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.

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.

A threshold legal issue raised in argument by the respondent was whether the facts, as described above, were covered by section 2 3(3) at all. The respondent claimed that since Mr. Blame was not asked to "use" or to "operate" any "equipment, machine, device or thing" and since there was nothing unsafe about the "physical condition" of his workplace, Mr. Blame's situation was not protected. We cannot agree. Firstly, the words in subsection (a) are broad enough to encompass a two-man operation involving a piece of equipment, in this case the circular saw. It was clearly necessary for the saw's effective use or operation in the circumstances that the hog be held. We find that Mr. Blame was therefore involved in its use or operation, even though his hands were not actually on the saw. Secondly, even if we are wrong in the first conclusion, we also think that Mr. Blame's situation is encompassed within subsection (b) in that the allegedly dangerous physical condition of his workplace was the inappropriately counterweight­ed saw being operated by an individual who could not control it. We have given these subsections a broad and liberal interpretation in keeping with the spirit of the Occupational Health and Safety Act which the Legislature enacted to protect employees who have reason to believe their work or workplaces place them in danger and, on this basis, refuse to do the work assigned. This interpretive approach is also in keeping with the Interpretation Act and the well-known canon of interpretation that remedial legislation ought not to be narrowly construed. There can be no question that the Occupational Health and Safety Act is a remedial piece of legislation. The respondent's argument that the Act is penal in nature may be true in other proceedings pursuant to section 37, but the proceedings before us do not lead to a penalty but, rather, compensation and other orders analogous to civil remedies (see section 24(1)).

11. This is a fact situation in which neither party to the events knew of the provisions of the Occupational Health and Safety Act at the time of the incident. The threshold factual question is whether Mr. Blame successfully communicated that the reason for his refusal to hold the hog, while Mr. Song operated the circular saw, was because he had a reasonable apprehension for his safety. The essential core of the seemingly formal process laid down in the Act is that the employee who refuses to work must explain to his employer that he believes what he has been asked to do will endanger himself or others. The Occupational Health and Safety Act ought to be applicable or be made applicable to "real life" situations, even where the details of the provisions of sections 23(3) and 23(4) are not known to the employees and the employer. The provision requiring the refusing employee "to report" to his employer or supervisor really is a provision requiring that employees candidly explain why they are refusing to work, so that the employer can make an assessment of the situation and either rectify a dangerous condition or maintain that there is no danger. In International Harvester, [1983] OLRB Rep. June 898, the Board had this to say about section 23.

12. Section 23 sets out a code of conduct for employees and employers where employees have reasonable concerns about hazards to their health and safety in their work places and their employers disagree. First of all, employees can refuse to work but must report the circumstances of that refusal to their supervisors. Section 23 provides for a two-tiered investiga­tion — initially by the employer immediately upon receiving the employee's report, and subsequently by Ministry of Labour inspectors after a continua­tion of the refusal. While the first tier occurs, the refusing employee must remain at a safe place near his work station (subsection 5) except, presum­ably, when his presence during the investigation requires something else (subsection 4). The employer, during this time, is given no right to assign alternate work, presumably because this would interfere with the employee's presence at the investigation and because the time taken up with the investigation is totally within the control of the employer. If, after this investigation, the employee continues to refuse to work because he has reason to believe his work or work place puts his safety in jeopardy and the employer continues to disagree with the employee's belief, then the inspec­tors from the Ministry must be called in. Pending this second-tier investiga­tion, the employer can either assign "reasonable alternative work" or, where none is practicable, "other directions" which do not violate section 24.

13. Between the initial work refusal and the decision of the inspector, the refusing employee and the employer are essentially locked in a contest of persuasion. Each must assess the situation and make difficult judgement calls. If at any time the employer correctly assesses the employee's beliefs as unreasonable, the full range of disciplinary action is available and this Board will not have any jurisdiction to interfere. Since employees only have the protection of the Act in circumstances where they can show their beliefs were reasonable, the Act provides for the employee's participation in both tiers of investigations.

(emphasis added)

In order for a work refusal to be protected by the provisions of the Occupational Health and Safety Act it must be shown that the employee has clearly stated safety to be the cause for the refusal. Unless the employee does this, the employer can interpret the refusal as simply a desire to avoid work or to cause a disruption in the work place. It is clear that on November 25th the safety of the operation of the circular saw was an issue that was under active discussion in a preliminary way between Mr. Nixon, Mr. Blame and Mr. Lantz and between Mr. Nixon and Mr. Steenhuis. The request by Mr. Vollmer that Mr. Blame hold the hog for Mr. Song occurred after there had been considerable experimentation, discussion and use of the saw by a number of individuals to try it out and after opinions had been formed as to its soundness. In these circumstances we hardly think it is likely that Mr. Blame would simply refuse without any explanation on two separate occasions within a relatively short space of time, a request that he become involved with this saw. We can find no reason to disbelieve Mr. Nixon's recall of and notes of the day's events. It is an objective reporting by one experienced in this industry about what he heard and saw. While the portion of Mr. Nixon's notes in which he records Mr. Vollmer's request and Mr. Blame's refusal were written 6 hours after the incident and with an eye to future litigation, they ring true as words spoken in this context between two men who had little use for each other. This is definitely "shop talk" and nothing in Mr. Blame's evidence about the exchange between them in substance contradicts. Mr. Blame merely omitted the raw language he and Mr. Vollmer used. Considering the background of Mr. Blame's and Mr. Vollmer's relationship with each other, we also consider it unlikely that Mr. Blame, who appeared to be a talkative, opinionated person, would miss the opportunity to tell Mr. Vollmer immediately his opinion of the saw and its operation by Mr. Song. Even if Mr. Blame was as cryptic as Mr. Vollmer claims, Mr. Vollmer said himself that he knew, through Mr. Lantz, that both he and Mr. Lantz considered holding the hog dangerous. We have no doubt that Mr. Vollmer was told that the basis of Mr. Blame's and Mr. Lantz's refusal was a perceived danger to their safety. It does not matter whether Mr. Steenhuis knew from Mr. Vollmer that there had been a work refusal by Mr. Blame which was related to the safe operation of the saw, because Mr. Vollmer's knowledge in this instance is Country Meats' knowledge, and there is no doubt that Mr. Vollmer was Mr. Blame's supervisor within the meaning of section 23(4) of the Act. Both Mr. Vollmer and Mr. Steenhuis seem to have misinterpreted Mr. Blame's refusal as being simply a challenge to their authority which would give him an excuse to fulfill his expressed intention of leaving and as being in keeping with their perception of Mr. Blame as one "who worked when he wanted to". While Mr. Blame could have been a bit more expansive with Mr. Vollmer and Mr. Steenhuis about his specific concerns with the saw, nevertheless we find that he has fulfilled the first pre-condition of establishing his entitlement under section 23 of the Occupational Health and Safety Act, i.e., showing that he communicated to his supervisor a belief that he was or would be endangered by performing the particular work assigned.

12. The second matter we must decide is whether Mr. Blame's belief was reasonable in the circumstances. We have come to the conclusion that Mr. Blame, as the installer of the saw, formed the opinion that the counterbalance on the saw was not appropriate. Opposite opinions were heard from Mr. Vollmer and Mr. Song. Mr. Blame believed that Mr. Song could not, without a proper counterbalance, properly manage the saw. His observations of Mr. Song bore this out. He heard an independent person, Calvin Nixon, express an opinion to the same effect. We found that a person in those circumstances would have reasonably come to the conclusion that he could be in danger if he held the hog for Mr. Song. The circular saw was much higher in speed and the potential for sudden serious injury greater. Mr. Vollmer himself acknowledged in his evidence that the new saw was more dangerous and caused him to give at least one thought to whether it was safe. While we were puzzled by Mr. Blame's description of how he thought he would have had to hold the hog, inasmuch as he did not seem to have paid much attention to how others held the hog on that day, and his methodology was different from what had been done with the piston saw, nevertheless, we do not think that Mr. Blame created an unreasonable method which, in and of itself, made the task dangerous. It appeared that during the morning when the saw was first operational a lot of experimentation and different approaches to the operation were tried, and it did not seem clear to us that there was any one method that was necessarily obvious, either from the cutting standpoint or the holding standpoint. This was confirmed by Mr. Nixon's evidence as well. We note that at the beginning of the day no formal instructions were really given by anyone in management to those who were going to be expected to either split or hold the hog as to what the correct methodology was; therefore, Mr. Blame could have been under the honest misconception (if it was that) as to how he was required to hold it. We therefore have concluded that Mr. Blame genuinely believed that he had to stand behind the backbone and hold the "gains" of the animal apart and thereby run the risk of losing some fingers at the entry point. Having believed the evidence of Mr. Blame as to the inappropri­ateness of the counterweight and Mr. Nixon's honest opinion that the saw was not fully under Mr. Song's control, having seen Mr. Song's stature, as compared to Mr. Vollmer's, and having relied on the fact that Mr. Song had not been the one who had managed the old saw and that no instructions were given by management to either Mr. Song or potential "holders", we have come to the conclusion that Mr. Blame's belief that he would be in danger if he held the hog while Mr. Song cut it with the circular saw was a reasonable one.

13. The final issue is whether Mr. Blame was discharged by Mr. Vollmer and/or Mr. Steenhuis or whether Mr. Blame had quit. We have no hesitation in concluding that Mr. Blame was given only two choices, i.e., holding the hog or leaving the employ of Country Meats. While on one level it appears that he "chose to leave" Country Meats, his departure was made involuntarily. He could not choose to stay except to put himself in danger. While we believe that Mr. Blame was actively seeking other employment elsewhere and had expressed his intention to leave as soon as he got such employment, the fact of the matter is that his departure was brought on earlier than perhaps he had intended or wished by his refusal of Mr. Vollmer's order to hold the hog while Mr. Song cut the carcass. The fact of the matter is that Mr. Blame had not given a specific date for his leaving and, clearly, was doing this so that he could hang on to his job at Country Meats, which may not have been ideal in his terms but was still a job. For all these reasons we find that Mr. Blame was discharged by the respondents, in whole or in part, because of his refusal to work pursuant to section 23 of the Occupation Health and Safety Act. This is a violation of section 24 and we so declare.

14. We are concerned about Mr. Blame's own passivity in accepting his termination in these circumstances. He says that he wanted to pick up his cheque personally after November 25th because he "hoped Mr. Steenhuis would change his mind". Yet, on the day he picked up the cheque and separation certificate, he did nothing to plead his own case or even raise the issue when he met Mr. Steenhuis. The only thing that seemed to concern him was what was written on the separation certificate, i.e., that he quit. We credit Mr. Blame with enough knowledge of the unemployment insurance system to know that this reason for leaving Country Meats would postpone and reduce his benefits. This was his concern more than his hope that Mr. Steenhuis might change his mind. In view of Mr. Blame's failure to try to make real a hoped-for change of mind by Mr. Steenhuis, we order that Mr. Blame be compensated for lost wages between November 25, 1983 and the date he picked up his separation certificate. It was agreed between the parties that the Board would reserve on the matter of quantification of compensation. The Board, not this panel, will remain seized of the compensation issue should the parties have difficulty in reaching agreement on this aspect.