Ontario Labour Relations Board
[1985] OLRB Rep. August 1210
2018-84-OH C. Douglas Sproule, Complainant, v. Frankel Steel Ltd., Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: David Nicholson, Joe Ginty and Douglas Sproule for the complainant; Terry Souter, Dill Evans and Elwin Kargus for the respondent.
DECISION OF D. E. FRANKS, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; August 27, 1985
1This is a complaint that the respondent has dealt with the complainant, Mr. Sproule, contrary to section 24 of the Occupational Health and Safety Act. The respondent takes the position that Mr. Sproule quit his employment. The complainant takes the position that he was constructively dismissed and that he was given no choice but to go to work in a job which he felt was unsafe and that further the constructive dismissal in effect ignores his right pursuant to the Occupational Health and Safety Act to refuse to perform work which he feels is unsafe. What is clear from the evidence is that the present complaint arises from a great deal of confusion and misunderstanding on everybody's part.
2The event which gives rise to this case occurred on September 18, 1984 when the complainant, Mr. Douglas Sproule, and another employee, Mr. Elwin Kargus, were assigned to move some steel beams from the respondent's shop to an area at the back of the shop where they could be moved out to be painted. The complainant had been working in the respondent's shop for a couple of weeks. The other employee he was working with, Mr. Kargus, had worked for the respondent for a number of years. Specifically, the beams in question were about eight feet long and weighing in the order of 150 pounds and were being transported by means of a hoist and a beam picker attached to the center of the beam.
3The evidence as to what actually happened while Mr. Sproule and Mr. Kargus were transporting this beam is in conflict but it is not necessary for us to determine what specifically led to the beam falling from the beam picker. For our purposes, the critical thing is that at some point in maneuvering this beam the beam fell from the beam picker and crashed to the shop floor. It appears that at this point both Sproule and Kargus blamed each other for the beam falling. Thus, when Mr. Dill Evans, the shop manager of the respondent, arrived on the scene what he witnessed was an argument between Sproule and Kargus about who caused the beam to fall. Evans ordered the two into his office where the argument continued.
4At this point we should comment that it is clear from Sproule's evidence that notwithstanding the question of who caused the beam to drop Sproule was thoroughly frightened by being nearly hit by this falling steel beam. It is also clear, however, from Mr. Evans' evidence that he did not address the matter that Sproule might be terrified but simply regarded the problem as one of an argument between Sproule and Kargus. Evans thus directed Sproule to return to working with Kargus and Sproule was clearly reluctant to do so in view of the recent incident. Evans instead interpreted this as in effect a refusal by Sproule to obey his direction and accordingly Sproule was terminated.
5It appears that later that day Sproule complained to the Occupational Health and Safety people concerning the incident and we are of the view that it is a fair assessment that the employer, and in particular Mr. Evans, was surprised that a safety issue was raised. In Evans' view he did not perceive Sproule's concern about working with Kargus as a matter of a safety concern.
6While we are sympathetic to the problem in this case that no specific reference was made by Sproule to safety when he refused to continue working with Kargus, we are of the view that there are no magical words necessary for an employee to exercise a right under section 23 of the Occupational Health and Safety Act. In the present case we are of the view that Sproule was in all likelihood so upset about this steel beam narrowly missing him that he took it as obvious that everyone would understand that that was what he was upset about. The fact that this was not perceived by Mr. Evans as being Mr. Sproule's concern does not deprive Mr. Sproule of the protection to which he is otherwise afforded by the Occupational Health and Safety Act.
7We are therefore of the view that Mr. Sproule is entitled to a remedy in this matter. Mr. Sproule is entitled to be treated as if he were not terminated on September 18, 1984. The parties are directed to meet and resolve the issue of the remedy to be accorded Mr. Sproule. In the event that they are unable to agree we remain seized of that issue.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
I dissent.
It seems to me that to come to the majority conclusion requires implicit acceptance of Sproule's version of the events.
Evans says he doesn't know which version was correct, nor do we make a finding.
We do know that Sproule said to Evans, in the morning "I quit", and that after lunch Sproule came back to Evans and said "I've thought it over and I'm quitting". All this notwithstanding the efforts of Evans to dissuade Sproule.
I agree there are "no magical words" but, in this case, Sproule's entire focus seemed to be on Kargus from anything Evans would have been able to fathom and even in the course of our hearing except that by then he had been apprised of the implications of the Occupational Health and Safety Act.
I think I could go along with reinstatement but without any back pay on the basis that he did after all author his own misfortune. To go beyond that would in my view open the door to requiring employers to be mind readers vis-a-vis the Occupational Health and Safety Act.
Even then, I would have some concern for whoever will be displaced by virtue of the reinstatement because I feel that individual and the employer have acted in good faith.