John O'Neill v. David Williams, Audrey Michell and The North Halton Association for the Mentally Retarded

[1986] OLRB Rep. December 1741

1343-86-OH John O'Neill, Complainant, v. David Williams, Audrey Michell and The North Halton Association for the Mentally Retarded, Respondents

BEFORE: Patricia Hughes, Vice-Chairman, and Board Members D. H. Blair and W. F. Rutherford.

APPEARANCES: L. H. Rosen, R. W. Kuszelewski and John O'Neill for the complainant; J. A. Roffey and D. Williams for the respondents.

DECISION OF THE BOARD; November 28, 1986

1. This is an application under section 24 of the Occupational Health and Safety Act ("the Act") in which John O'Neill contends he was dismissed by the North Halton Association for the Mentally Retarded ("the Association") because he tried to enforce the Act.

2. The hearing into this matter began on October 14, 1986. At that time (reflecting its Reply), the Association raised three preliminary objections to our hearing this case: it submits that "supervisors" are excluded from the remedial provisions of the Act and thus O'Neill does not have status to bring an application under section 24 of the Act; it argues that we should dismiss the application on the basis of timeliness; and it requests that we dismiss the application for failure to provide particulars under section 72 of the Board's Rules of Procedure.

3. We first heard submissions with respect to the contention that supervisors do not have status to bring an application under the Act. Counsel for the Association depended on the wording of the Act, including the definition of "supervisor", "worker" and "trade union", the inclusion of "person" in certain provisions, the reference to "a worker" in certain provisions and on the allocation to supervisors and workers of different responsibilities and obligations under the Act to support her contention that supervisors do not have status under section 24. She argued that if "worker" includes "supervisor", supervisors could claim worker status and avoid obligations under the Act. Furthermore, there was nothing unusual in a supervisor not having the same remedies as a worker. She stated that there was no jurisprudence on this issue, but referred us to Tecumseh Products of Canada, Limited, [1985] OLRB Rep. Jan. 123 in which this argument had been raised. However, the Board did not decide that issue because it dismissed the complaint on the basis of delay. We considered the submissions of counsel and were not persuaded that they lead to the conclusion that supervisors do not have status. Furthermore, in our view, it is more consistent with the intent of the legislation that supervisors have the opportunity to make applications under section 24 than that they do not. We accordingly ruled orally that Mr. O'Neill, whether or not a supervisor, has status to bring a complaint under section 24 of the Act. (Mr. O'Neill's representative took the position that Mr. O'Neill was not a supervisor because he could not hire or fire; he appeared not to understand that at this point, that was not the issue before us. We note that the definition of "supervisor" does not make reference to hiring and firing and believe it inappropriate to import definitions developed under the Labour Relations Act into terminology under the Occupational Health and Safety Act, as we were urged to do by Mr. O'Neill's representative, except as specified under the legislation. In light of our decision on this point, we did not hear evidence with respect to whether Mr. O'Neill was in fact a supervisor within the meaning of the Occupational Health and Safety Act.)

4. We now set out more fully the reasons for our conclusion that supervisors have status to make complaint under section 24 of the Act.

5. Under section 1.26 of the Act, "supervisor" is defined as "a person who has charge of a work place or authority over a worker". Section 1.29 defines "worker" as "a person who performs work or supplies services for monetary compensation". A supervisor does perform work or supplies services for monetary compensation. Thus, while the language could have been clearer, (for example, the phrase "authority over other workers" might have been used in section 1.26), in our view, supervisors are subsumed under the category "worker". The definition of "trade union" under section 1 .27 "includes an organization representing workers or persons to whom this Act applies where such organization has exclusive bargaining rights under any other Act in respect of such workers or persons". More generally, it is defined by reference to the definition of trade union under the Labour Relations Act. It does not have to represent all persons to whom the Act applies and therefore the fact that a union may not represent supervisors does not mean that for purposes of occupational health and safety, a supervisor may not also be a worker.

6. Supervisors and workers are given different responsibilities under the Act. Thus when a worker is also a supervisor, his or her duties are set out under section 16. Non-supervisory workers are subject to the duties enumerated in section 17.

7. Certain sections refer to "person". Where these terms are used, they may refer to persons who are at the work place, but do not have worker status, supervisory or non-supervisory. For example, section 25(1) refers to "a person [who] is killed or critically injured from any cause at a work place". Such persons do not have a remedy under section 24 of the Act. Only workers, supervisory or non-supervisory, have status under section 24. However, such persons may contravene the Act and be subject to the penalties under section 37 (for example, section 25(2) states that "no person" shall "interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence").

8. In our view, the wording of the Act can be reasonably interpreted to give supervisors a right to a remedy under section 24 of the Act. This interpretation is more consistent with the policy considerations underlying the Act than the exclusion of supervisors would be. We can conceive of no justification for not giving supervisors the right to refuse to work where working conditions are unsafe. We therefore confirm our oral decision in this matter.

9. Mr. O'Neill was fired on February 4, 1986 and filed this complaint on July 31, 1986. The Association contends that this delay of approximately six months is excessive and warrants dismissal of the complaint. We did hear evidence with respect to why Mr. O'Neill did not file his complaint until July 31, 1986. However, in light of the decision we reach below on the failure to file particulars, it is not necessary for us to rule on the issue of delay and we do not do so.

10. The respondent wrote to Mr. O'Neill on September 10, 1986, requesting particulars of his complaint. Although Mr. O'Neill had in fact sent a letter to the respondent indicating his view that the respondent knew all the facts, expressing a concern that the respondent was trying to "trick [him] into making a procedural error", but also stating that he would "rehearse" the respondent if necessary, the respondent had not received it by the date of the first hearing. We gave the complainant and his representative some time to discuss with the respondent the matter of particulars and to provide them during the first day of hearing. This exercise proved to be totally futile. The complainant's representative did not appear to understand what was expected in the way of particulars. Accordingly, we gave the complainant until October 21, 1986 (a date agreed to by the parties) to provide the respondent with particulars as follows:

the specific dates on which he had raised safety matters; the specific matters involved; the specific individuals with whom these matters were raised; the specific provisions of the Act which he claims he was trying to enforce.

We emphasized to the complainant that our role was not to determine whether the employer had contravened the Occupational Health and Safety Act, but to determine whether the complainant had been terminated for attempting to enforce compliance with the Act. We informed the complainant that he would be permitted to provide particulars only with respect to the two specific issues which he had raised in his complaint. These were stated in the complaint to be as follows:

1. On or about October, 1985 the Complainant sought to improve the safety arrangements of the vans transporting clients.

2. On or about January, 1986 the Complainant sought to enforce engineering controls standards regarding the toxic fumes from the shrink wrap operation including those set out in section 145 of Regulation 692 under the Occupational Health and Safety Act.

11. A second day of hearing (October 31, 1986) had been scheduled for cross-examination on the matter of delay. Mr. O'Neill had filed within the time provided a document purported to be the particulars ordered by the Board. However, the document referred to sections of the Act and of Regulation 692 having no relevance whatsoever to the complainant's original allegations and did not appear to contain reference to provisions which did relate to those allegations (except section 145 of Regulation 692). Mr. O'Neill had a new representative at this time and he acknowledged that these "particulars" would not be of assistance to the respondent. It would not have been inappropriate to have dismissed the complaint at this time, since Mr. O'Neill had failed to provide the particulars ordered by the Board and requested by the respondent on September 10, 1986. However, we gave the complainant and his new representative a period of time during the hearing to set out the particulars relating to the specific allegations in the complaint, in accordance with our oral order of October 14, 1986. The material produced by the complainant did not satisfy the Board's order to provide particulars pursuant to section 72 of the Board's Rules. We were not prepared to afford Mr. O'Neill any more time to refine this "material" and accordingly, we orally dismissed the complaint for failure to provide adequate particulars under section 72 of the Board's Rules.

12. Counsel for the respondent asked for costs for the first day of hearing since a period of time had been required to deal with the matter of particulars which the respondent had requested on September 10, 1986. We decline to deviate from the Board's normal practice of not awarding costs, particularly since the respondent was unsuccessful in its objection to our proceeding on the basis that supervisors do not have status under section 24 of the Act.

13. Our oral dismissal of this complaint is hereby confirmed.