Ontario Labour Relations Board

[1986] OLRB Rep. February 215

0917-85-OH Theresa Russ, Elaine Jennings, Kelly Shields and Carole Matthewson, Complainants, v. Cody's Stores Ltd., Respondent

BEFORE: Lita-Rose Betcherman, Vice-Chairman, and Board Members F. C. Burnet and B. L. Armstrong.

APPEARANCES: Theresa Movre (nee Russ), Elaine Jennings, Kelly Shields, Carole Matthewson and John Cheeseman for the complainants; Keith Cody for the respondent.

DECISION OF LITA-ROSE BETCHERMAN, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; February 24, 1986

1. The complainants allege that the respondent violated section 24 of the Occupational Health and Safety Act (OHS Act) by disciplining and penalizing them for exercising their rights under section 23 of the Act. The relevant clauses are as follows:

23.-(3) A worker may refuse to work or do particular work where he has reason to believe that,

(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

(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,

(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,

(b) the physical condition of the work place or the part thereof in which he works continues to be likely to endanger himself; or

(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 is practicable, to the employer, the worker, 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.

(It) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the work place or the part thereof which is being investigated unless the worker to be so assigned has been advised of the refusal by another worker and the reason therefore.

24.0 (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 by 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.

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.

2. The respondent operates a retail and wholesale business in Hamilton dealing in paints and wallpaper. A store with offices and a warehouse is on the premises. The four complainants were employed in the shipping and receiving department located on the main floor of the warehouse.

3. Early in May 1985, the respondent received two shipments of wallpaper from Italy.

Although previous shipments of the Italian wallpaper had not caused problems, an odour emanated from these last two shipments and there is no dispute that most warehouse workers were complaining about it. The complainants testified that they were feeling ill from the odorous wallpaper and, in fact, went to see their doctors on May 23 and 24. The evidence shows that management witness Krista Fruck also visited her doctor on May 23rd. The complainants testified that they were worried about possible harmful effects from the substance.

4. On Thursday, May 23rd, the complainants told their supervisor, Linda Bird, and the foreman, a Mr. Somani, that the odour was causing them headaches and nausea. It seems that Mr. Somani opened the doors and windows but the complainants closed them claiming it was too cold. Complainant Matthewson then called the Ministry of Labour seeking advice on how to deal with the situation. She was informed of her rights under the OHS Act and was advised to file a formal complaint with management. Matthewson and her supervisor, Linda Bird, then called the office manager, a Mr. Braun, who was in charge while the owners Mr. and Mrs. Cody were in Calgary. According to Matthewson, Braun told them that they were worrying about nothing and "should stick their heads out the door." She also testified that she listened in on a later telephone conversation in which Braun told Bird to stop wasting time and to get back to work. The evidence is unclear as to the timing of the visit, but there is no doubt that an inspector from the Industrial Health and Safety Branch of the Ministry of Labour visited the work place and talked to Braun and Somani in the presence of Bird and Matthewson who represented the employees. The inspector informed both managers about the rights and obligations of employers and employees under the Act and cautioned them about taking reprisals against employees who exercised their rights. Neither Bird, who is no longer employed by the respondent, nor Braun or Somani testified at the hearing. In the absence of testimony from the two managers involved in the work refusal, the Board accepts the complainants' version of events.

5. Although the premises were aired out overnight on instructions from Mr. Cody in Calgary, all witnesses agree that the odour was still evident on Friday, May 24th. It was Matthewson's day off, but at approximately 8:00 a.m. Russ and Jennings arrived for work. They asked Somani if anything was being done about the odour. He replied that they had telexed Italy for information, which would take several weeks to arrive, and that nothing would be done until then. Russ and Jennings handed in medical notes stating that they were to avoid exposure to the wallpaper, asked for alternate work, and, on being told by Somani that there was none, refused to work in accordance with the Act. Somani sent Russ and Jennings home. When Shields reported for the afternoon shift, she too handed in a medical note and put in a work refusal. Somani assigned her to work in the office. Around the same time, Somani recalled Russ and Jennings to work in the office as well. At 4:30 p.m. however, he informed the complainants that he had spoken to Mrs. Cody who had given instructions that they were to go back to the warehouse or to go home. On behalf of the complainants, Russ called the Ministry and at 5:30 p.m. an inspector from the Industrial Health and Safety Branch arrived. The latter again reviewed the Act with management and warned against reprisals.

6. On Monday, May 27, complainant Matthewson reported for work at 8:00 a.m. She handed in a medical note, and, on being informed that no alternate work was available, she too refused to work.

7. At 11:15 a.m. on the 27th, the inspector arrived with officials from the Occupational Health Branch who proceeded to assess the air quality in the warehouse. The tests were conducted in the presence of Braun, Somani and the complainants, Russ, Jennings and Shields.

8. On completion of the inspection, the inspector found that the respondent has contravened section 23 of the Act and issued an interim order to the employer stating that, pending the final results of the air sampling tests, "approved organic vapour respirators shall be worn by the refuses while working in the warehouse and shall be provided for other workers who wish to use the respirators." This order was to be complied with forthwith.

9. The complainants asked Braun if they should phone in every day to find out when the respirators were in. They testified that Braun said, in effect, "Don't call us, we'll call you." The uncontroverted testimony of the complainants was that they were not called.

10. On May 30th, the complainants came to pick up their paycheques and had a conversation with Mrs. Cody. What was said during this conversation is in dispute. The complainants all testified that Mrs. Cody deeply resented their refusing to work and told them she would fire them if she could. They testified that she showed them one respirator but did not ask if they wanted to wear it. They further testified that she told them they were to remain off work until the final report was received. In reply evidence, Mrs. Cody agreed that she was very upset by the refusals because she felt that the complainants should have spoken to her before calling the Ministry. She freely admitted telling them that she would fire them if she could; however she claimed that she said they could come to work anytime but they would have to wear respirators. She acknowledged commenting to the complainants, "Maybe you want to wait until the results are in." Mrs. Cody testified that on May 31st, the inspector called her to say that respirators would no longer be necessary. She stated that she felt no obligation to convey this information to the complainants since she knew them to be in daily communication with the Ministry.

11. Krista Fruck, a warehouse employee who testified on behalf of the respondent, stated that she overheard Mrs. Cody tell the complainants that they could come back if they would wear masks but that they had refused to do so.

12. Mr. Cody also testified that he overheard the May 30th conversation. According to Mr. Cody, his wife told the complainants that they could not be fired and that they could come back to work whenever they wished. Mr. Cody denied that Mrs. Cody said they were to wait until the final report came in. When asked why only one respirator had been purchased in compliance with the interim order, Cody said they felt the complainants might not want to wear them. He agreed that the respirator was disposable after one wearing. Mr. Cody acknowledged that while the complainants were off work, two new warehouse employees were hired.

13. Russ testified that she telephoned the Ministry daily to find out if the final report was ready. On June 12th she found another job and quit her employment with the respondent.

14. Jennings testified that on June 12th she called Cody to find out if she would be paid for the time she was not working. Cody told her that she and the other complainants could have returned at any time after May 30th and since they had not done so they were not entitled to pay.

15. Jennings notified Matthewson and Shields of her conversation with Cody and she and Shields reported for work on June 13th. Shields testified that Mrs. Cody told her that more Italian wallpaper would be coming and that "if we didn't like it we should quit." Shields also testified that Mrs. Cody told them that there would be no more personal time off and that henceforth rules would be strictly enforced. In her reply evidence, Mrs. Cody did not deny these statements.

16. Matthewson did not report for work until June 19th, allegedly because of doctors' appointments. However, she did not deny Mrs. Cody's charge that she had been expected to come back on June 15th but had not reported in or telephoned.

17. On June 19th the inspector delivered the final report to the respondent. The report stated that the conditions which caused the work refusals "would not be hazardous to nearly all workers." It went on to say that some individuals are more sensitive to low concentrations of formaldehyde than others. The interim order requiring respirators was rescinded, but the respondent was advised that they should be provided for any employees who wished to wear them. The report also stated that if new shipments of the odorous wallpaper were received, air sampling results would be needed. The inspector reminded the Cody's about the prohibition on reprisals.

18. On June 20th both Matthewson and Shields received letters of dismissal with two weeks' notice. Matthewson had worked for the respondent for four years, both full-time and part-time; Shields had worked for about three years. At the time of their dismissals, Matthewson was working part-time. Shields had been working full-time for about five months but the respondent was aware that she was planning to go back to school in September.

19. Jennings, the only complainant still working for the respondent, testified that she was being harrassed by the Codys with written warnings whereas she had never received any in the past. The warnings allege personal telephone calls on company time, rudeness to other employees, the use of unauthorized foot wear, and unreasonable scheduling demands.

20. The Codys testified that Shields and Matthewson were let go because of a decision to eliminate part-time employees in the warehouse. They stated that this decision had been made in March, 1985. Cody admitted that he had not asked either woman if she wanted to work full-time.

21. In his own defence, Mr. Cody argued that steps had been taken to get rid of the odour by airing out the warehouse and that the action of the complainants in closing the doors was evidence of a conspiracy to get time off with pay. This argument fails because of uncontroverted evidence that all four complainants asked for alternate work. Mr. Cody's main argument, however, was that they could have come back anytime after May 30th but chose to remain off work. He argued that the results of the tests showed that the complaints were pure fabrications. Finally he argued that the dismissals were not in the spirit of reprisal but represented a change of policy contemplated long before the work refusals for business reasons.

22. On behalf of the complainants, Mr. Cheeseman argued that it was up to the respondent to recall the complainants to work in accordance with the interim order. He submitted that the complainants' evidence as to the May 30th conversation should be preferred over Mrs. Cody's. He pointed out that they returned to work as soon as Mr. Cody said they could. He also used the factual circumstances to illustrate how the respondent had failed to comply with section 23 of the Act.

23. Section 23 of the Act gives the worker the right to refuse work which she reasonably believes to be unsafe and Section 24 protects her from reprisals for so refusing. To invoke the protections of the Act, the worker must satisfy the Board (a) that in her initial refusal to work, she had reason to believe that the work was unsafe, and (b) that following an employer investigation she had reasonable grounds for continuing to refuse to work.

24. There is no doubt that a bad odour emanated from the Italian wallpaper shipment. This was testified to by all witnesses and acknowledged by Mrs. Cody. It is also clear on the evidence that the odour was causing considerable discomfort to many if not all workers in the warehouse. The fact that the respondent's witness, Krista Fruck, went to her doctor on May 23rd indicates that not only the complainants were feeling ill enough to seek medical opinion. Even after airing out the warehouse overnight, the evidence shows that the odour continued on Friday, May 24th. In the face of the universal discomfort caused by the odour, the Board finds that the complainants had reason to believe that the odour represented a danger to themselves when they refused to work on May 24th.

25. The Board further finds that the complainants had reasonable grounds for believing that the odour continued to be dangerous after reporting the circumstances of their refusal to the managers in charge. Nothing was done to alleviate their worry. There was uncontroverted evidence that Mr. Braun simply told them to stop wasting time, and Mr. Somani advised them that, apart from telexing Italy for information which would take several weeks to arrive, nothing further would be done. At 4:30 p.m. they were confronted with the option of returning to the warehouse or going home. Since no measures were taken by management following their initial refusal, they obviously had no reason to alter their opinion. The complainants quite properly took the next step which was to call in an inspector.

26. That the complainants' opinion was not unfounded is confirmed by the inspector's interim order to the employer, issued on Monday, May 27th, to forthwith provide the complainants with respirators and that the same be made available to other warehouse employees.

27. It is irrelevant that the report issued on June 19th found that the substance in question was not harmful for most workers. The legislation states that a work refusal is legitimate where the employee's belief that she is unsafe is reasonable. The Board is satisfied that, at the time of their refusals, the complainants had reasonable grounds for believing that their work place was unsafe. Consequently, the complainants are protected by the Act, as guaranteed by section 24.

28. Section 24 of the Act prohibits an employer from disciplining, penalizing or intimidating employees for exercising their rights under section 23. Moreover, subsection (5) of section 24 places the onus upon the employer to prove that there were no reprisals. Complainants Shields and Matthewson allege that their dismissals on June 19th were in reprisal for their work refusals. Complainant Jennings alleges that as a result of her work refusal she suffers harassment on the job from management. Matthewson and Shields claim compensation for the period from their termination to the time they secured new employment on August 5 and July 12 respectively. All four complainants claim compensation for wages lost during their work refusal and for the three days of Board hearings.

29. The Board is unconvinced by Mr. and Mrs. Cody's testimony that Shields and Matthewson were discharged as a result of a change in policy to full-time workers only in the warehouse. The use of part-time workers in the warehouse dated back to 1982 and there was no evidence, other than their self-serving testimony, that Mr. and Mrs. Cody had contemplated such a change prior to the work refusals. Neither Shields nor Matthewson were offered full-time jobs although both had experience working full-time. The hiring of two new employees suggests that the respondent intended to replace them. As well, Mrs. Cody's admitted statement on May 30th that she would fire them if she could is evidence of intent to take reprisals. The timing of the dismissals is also significant. It is clear that the Codys erroneously took the results of the test to mean that there was no substance to the work refusals. The report was issued June 19th. It is hard to avoid the conclusion that the dismissal letters of the same day reflected the Codys belief that they could now safely discharge the two complainants. The Board finds a causal connection between the work refusals of Shields and Matthewson and their dismissals on June 19th.

30. It is the finding of the Board that the dismissals of Kelly Shields and Carole Matthewson were the direct result of their legitimate work refusals and hence a violation by the respondent of section 24(a) of the Act.

31. Not only does section 24 prohibit an employer from disciplining a worker for exercising rights under section 23, but it also prohibits imposing a penalty upon or intimidating or coercing a worker.

32. The four complainants were off work without pay from the time of their work refusals, made pursuant to the Act, until Mr. Cody gave the signal on June 12th that they could come back. On May 27th the inspector issued an interim order to the respondent which would have allowed for the complainants' return to work.

33. The Board wishes to stress that it was an "Order to the Employer" and that the onus was on the respondent not on the complainants to carry it out. Had the complainants refused to wear respirators they would then have been in breach of section 17 of the Act but there was no evidence of such a refusal. Having regard to the inspector's interim order of May 27th, the Board finds that the respondent should have recalled the complainants to work as soon as respirators could reasonably have been obtained. This obviously could have been done by May 30th as Mrs. Cody had a respirator by that time.

34. In this light, the conflicting evidence relating to the May 30th conversation between Mrs. Cody and the complainants becomes crucial. Mrs. Cody claims that she told the complainants that they could come back to work any time on condition that they wore respirators. The four complainants all testified that she told them they could not return until the report was in. The Board, therefore, must make a finding on the relative credibility of the witnesses. Mrs. Cody's evidence was corroborated by Mr. Cody and Krista Fruck who claim to have overheard the conversation. However, the Board cannot accept their testimony as impartial. Since the incident, Krista Fruck has been promoted to supervisor, Linda Bird's former position; moreover, during her testimony she clearly betrayed a bias in favour of her employer. Mr. Cody's corroborative testimony is not conclusive for obvious reasons. Furthermore, the purchase of only one respirator is inconsistent with a real intention to put the complainants back to work. Accordingly, the Board prefers the evidence of the four complainants who all testified that Mrs. Cody told them to remain off work until the final order was received.

35. On the evidence, the Board finds that the respondent did not offer respirators to the complainants; did not advise them when the order was rescinded; told them not to come in until the report was issued, i.e. until they were called. In fact, the complainants did not get back to work until one of them called Mr. Cody.

36. The Board finds that the respondent penalized the complainants by failing to recall them by May 30th. As discussed above, respirators could have been obtained by then. Indeed, if Mrs. Cody is to be believed, they could have worked from May 31st even without respirators as the interim order had been rescinded. In the result, the Board finds that the respondent also violated section 24(c) of the Act.

37. On the evidence before it, the Board can make no finding with respect to the allegations of harassment by Elaine Jennings.

38. To remedy the aforementioned violations and taking into account all circumstances, the Board makes the following orders:

(i) The respondent shall pay Theresa Russ her regular wage for the period May 31 to June 12, 1985, inclusive;

(ii) The respondent shall offer reinstatement to Carole Matthewson and shall pay her her regular wage for the periods May 31 to June 15, 1985 inclusive and July 6 to August 5, 1985, inclusive;

(iii) The respondent shall offer reinstatement to Kelly Shields and shall pay her her regular wage for the periods May 31 to June 13, 1985, inclusive and July 6 to July 17, 1985 inclusive;

(iv) The respondent shall pay to Elaine Jennings her regular wage for the period May 31 to June 13, 1985, inclusive.

39. The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.

DECISION OF BOARD MEMBER F. C. BURNET;

1. I am in substantial agreement with the decision of the majority of the Board, though not with the relative weight given to the credibility of evidence on each side, nor with one specific aspect of their decision.

2. For our purposes, the salient provisions of the Act are that an employee may refuse to do work when he "has reason to believe that the physical condition of the work place is likely to endanger himself', (s. 23(3)(b)). During the ensuing period of investigation by the employer (and, if available, employee representatives), the employee shall remain at or near his work station, at a safe place, and be available to assist in the investigation, (s. 23(4) and (5)). For convenience, this may be described as Stage 1.

3. If, following this investigation, the employee has "reasonable grounds to believe that the physical conditions of the work place continue to be likely to endanger himself" the employee may refuse the work and request an investigation by an inspector of the Ministry of Labour, whose decision will be given in writing, (s. 23(6) to (10)). Pending such decision, the employer may assign reasonable alternative work, or if such is not reasonably available, may give "other directions". The Board has determined that "other directions" may properly include lay-off without pay where such action is not motivated by a desire to punish the employee for invoking the Act, (International Harvester vs. Local 127, U.A. W. [1983] OLRB Rep. June 898). This may be described as Stage 2.

4. The first issue is whether the complainants "had reason to believe" their work place was unsafe. All parties agreed there was a strong and unpleasant odour emanating from a recently received shipment, throughout the week ending Saturday May 25. The complainants asserted that it was affecting them physically through nausea and headaches. Thirteen others in the area continued to work without such complaints and two of them testified that while the odour was unpleasant, it was relatively short lived and tolerable. An attempt was made by supervision on May 23 to alleviate the problem by simply opening doors and windows at the start of the day, but this effort terminated when the complainants complained of the cold. Evidence was provided that an unseasonably warm spell was in progress and that maximum official outside temperatures were 21 C (6SF) on May 21 and 24C (7SF) on May 24.

5. While there is some room to question the attitude or motivation of the complainants in the light of their reluctance to co-operate in the obvious and sensible ventilation attempts, even at the cost of some relatively minor inconvenience or discomfort, I would accept their assertions of experiencing nausea and headaches and conclude they "had reason to believe" their work area might be unsafe. Accordingly, I do not think they should have been sent home at any point in the Stage 1 investigation. They should have been assigned alternative work, if such was available, up to and including Monday May 27, when the Step 2 investigation took place. No evidence was submitted to show that reasonable alternative work was not available, that is, that the employees would have been laid off if their inability or unwillingness to work had arisen for reasons entirely unrelated to this complaint. In fact, the foremen first denied them work, then called them in, then on orders from Mrs. Cody by telephone, sent them home again. The employer has the burden of proof on this aspect and in the absence of such proof, I concur with that part of my colleagues'

decision covering pay for any time lost by the complainants as a result of this situation up to and including Monday May 27.

6. The report of the May 27 inspection noted that the warehouse comprised a basement, where the majority of the suspect wallpaper was stored, and two other floors. The complainants were located on the main floor but some travelling between floors was required of them in the course of their duties. The report stated that "a solvent like odour was faintly detectable in areas of the basement. The wallpaper was in its original plastic wrappings and when this was opened the same odour (faint) was noted. No other source of any type of odour was detected." (emphasis added).

7. It seems evident from the observations by a neutral and trained observer that the immediate "crisis" was over, whether as a result of natural diminution of the solvent odours, weekend ventilation efforts of both. This must have been equally apparent to the complainants, three of whom accompanied the inspector. Nevertheless, the inspector quite properly took air samples for laboratory analysis, and as a further precautionary interim measure ordered the compulsory wearing of masks by the complainants in the work place and the provision of additional masks for others who might request them, and this interim order set off a new round of issues.

8. The employer secured a mask, apparently for display or demonstration purposes and asserted that the supplier was temporarily out of stock in respect of further orders. He did not expedite a further order since it seemed apparent to him that they would not be used by either group of employees contemplated in the inspector's order, given their grotesque appearance and innate discomfort and the fact that conditions had virtually returned to normal. Neither had the complainants shown much interest in donning a mask and resuming work when they were shown the sample mask several days after the inspection. In any case, they remained off work after May 27, asserting that they were awaiting a call from the Company and meantime maintaining daily contact with the Ministry to determine when the final report would be issued, but without success.

9. Mrs. Cody stated she was advised verbally by the Ministry on May 31st, that the mask order had been rescinded. She assumed the complainants would also be advised by the Ministry, claiming that the inspector had so indicated to her, and knowing that the complainants were in daily communication with the Ministry, and so she awaited their return or call. The complainants denied that they were ever advised by the Ministry of the rescinding order, despite their insistence that they were in daily contact with the Ministry. They also insisted that they had been earlier advised by Mrs. Cody that they could not return until the final report was in.

10. Mrs. Cody denied this last allegation and maintained the complainants were free to return from the date of rescinding of the interim order or earlier if they would wear a mask which she clearly did not expect them to do. In any event, communications ceased; neither side attempted to contact the other, and the complainants stayed home for about two and a half weeks. Ms. Matthewson testified that she had concluded from conversations with the inspector that if the Company had ordered them to stay home, they would be paid, and only on June 12 when she learned from Ms. Jennings that this might not be so, did she promptly call Mr. Cody. He confirmed that she and the others could return and, according to him, advised that they could have done so at any time after May 27. (During the hearing, Ms. Matthewson was alleged by a supervisor to have openly declared at the outset her intention to get some time off with pay, and to have accused others of lacking "guts" in not joining the complainants, both of which allegations she denied).

11. From this melange, and particularly considering the fact that both parties knew conditions had virtually returned to normal by the May 27 investigation, and that both knew or should have known that the mask order had been rescinded on May 31, the question becomes, who is responsible for the "stand-off" or waiting game that apparently ensued in the following several weeks? I think both parties share that responsibility. In the course of ordinary good management, the employer should have contacted the complainants to direct or encourage them back or even to ascertain their future employment intentions. He should not have assumed that their continued absence was a voluntary decision on their part. But likewise, the employees, presumably having a serious stake in continued employment and daily access to the Ministry and easy access to the employer, might reasonably have been expected to keep in better touch with the changing situation. They did not do so until one of them learned they might not be eligible for pay and only then, promptly called. Both appear to have been waiting out the other and both bear some responsibility for the consequences of their own actions or lack of it. I would award half pay for time lost in Stage 2.

12. Respecting the discharge of two complainants Matthewson and Shields after the foregoing events, there was no evidence that the change from part-time to full-time staffing was planned prior to this incident, the discharged employees were not offered the full-time vacancies in the new set-up and the business rationale offered for the change was not con­vincing. The employer has not met the burden of proof which the Act places on him and I therefore concur in the decision of the majority on this issue.