[1987] OLRB Rep. February 251
0133-86-OH Marie V. Roy, Complainant, v. North American Plastics Company Limited, Peter Walker, Michael N. Brown, Steven Lemak, and Lad Kaminsky, Respondents
IEFORE: Ian C. Springate, Alternate Chairman, and Board Members F. W. Murray and D. A. Patterson.
APPEARANCES: Marie Roy and Barbara Starr for the complainant; Michael N. Brown and Steven Lemak for the respondents.
DECISION OF THE BOARD; January 30, 1987
- This is a complaint under section 24 of the Occupational Health and Safety Act. The hearings into the complaint took seven days to complete. The respondent employer, which bears the onus of proof, called nine witnesses. The complainant then called 13 additional witnesses, including herself. Below we have set out in summary form our understanding of most of the events referred to by the witnesses. Detailed discussion of the evidence has been limited to those matters which are both relevant to the complaint and with respect to which the evidence is in conflict.
Section 24 of the Act provides, in part, as follows:
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.
(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsecÂtion (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.
The respondent company is an automotive parts manufacturer located in Wallaceburg. Its plant employees are represented by the International Union United Automobile, Aerospace arid Agricultural Implement Workers of America, Local 251 ("the union"). There are approxiÂmately 650 employees in the bargaining unit represented by the union, including the complainant. The company has a history of health and safety problems, including work refusals by persons other than the complainant. The complainant made repeated references to these problems throughout the hearing. Company representatives readily acknowledged the problems. Mr. Michael Brown, the respondent's personnel manager, testified that the company has been seeking to improve matÂters, and in this regard has sought the assistance of the Ministry of Labour's Industrial Health and Safety Branch. It is of interest that the instant complaint involves foreman Steven Lemak. The eviÂdence establishes that Mr. Lemak's area of responsibility has experienced the least amount of lost time by employees, the least number of employees requiring first aid treatment, and, apart from the complainant, no work refusals by employees and no complaints by employees relating to safety matters. The complainant testified that prior to the events described below, she never encountered any difficulties with Mr. Lemak. Indeed, she commented that he was the respondent's kindest and best supervisor. In making her final submissions, the complainant contended that Mr. Lemak's conduct of which she complains must have been the result of Mr. Brown saying something to Mr. Lemak to "twist his brain about".
The complainant is 28 years of age. She is highly articulate. Management witnesses readily acknowledged that when at work the complainant is a good worker. The complainant's employment relationship with the respondent has been quite eventful. She initially commenced working for the respondent in 1984. While still a probationary employee, she was discharged. The company contended that her discharge was due only to the fact that during her probationary period she had been absent a majority of her scheduled work days. The complainant, however, contended that her discharge had been due to her refusal to perform a job in the decorating department which she believed to be unsafe. The complainant filed a complaint alleging that her discharge was in vioÂlation of section 24 of the Act. The parties settled the complaint in February 1985 with the comÂplainant being returned to work without any compensation. In these proceedings the complainant alleged that since her reinstatement she has been constantly harassed by management in retribuÂtion for her having filed her complaint. Apart from the events described below, however, no eviÂdence was led which might arguably support such a claim. The complainant did complain to Mr. Rick Lalonde, the union's plant chairperson, about alleged harassment on the company's part. Mr. Lalonde testified that no grievance was filed with respect to the allegation since the union had no facts to back it up.
At some point in 1985 the complainant indicated to Mr. Lemak that she was receiving static shocks when working on the respondent's Chrysler line. It was the grievor's testimony that because of the shocks, she refused to work. Mr. Lemak, however, testified that he did not recall the grievor refusing to work. According to Mr. Lemak, after the complainant raised the matter of the shocks with him, he had two maintenance employees and two electricians investigate the matÂter and they found nothing wrong. Notwithstanding this finding, it appears that the complainant was assigned to other work.
Four employees, including two called as witnesses by the complainant, testified that they had never received shocks from the Chrysler line. Three other employees, however, namely Mr. Kevin Hooper, Miss Diane MacAdam and Mrs. Sandy McFadden, testified that they had, at times, received shocks from the line. Mr. Hooper described the shocks as "small, nothing major". Mrs. MacAdam stated that sometimes she would get the shocks every day for 3 or 4 days and then not get them for a while. The three employees testified that they had never reported receiving shocks to management or the union. Both Mr. Lemak and Mr. Lalonde testified that apart from the complainant they had not received any complaints from employees about receiving shocks.
In response to a question from Board Member Patterson, the complainant indicated that every time she touched a part on the Chrysler line, she received a shock, and that she touched the line approximately every half minute. The complainant further testified that when she was on the Chrysler line, any person near her would receive shocks off of her. Although the complainant called 12 witnesses in addition to herself, none of them testified to receiving shocks off of her. On March 19, 1986 Mr. Mortensen, a health and safety inspector, inspected the Chrysler line for shocks. Mr. Mortensen asked the complainant to touch a number of panels on the line, while he was touching her. When the complainant did so, she did not receive any shocks.
In July of 1986 officials of the Occupational Health and Safety Division of the Ministry of Labour visited the respondent's plant to investigate possible shocks from the Chrysler line. On July 21, 1986 Dr. A. M. Muc, Supervisor, Non-Ionizing Radiation Safety, issued a report with respect to the visit. That report is set out in full below:
Drs. G. Goldberg and A. M. Muc visited Northern American Plastics to observe the workplace and discuss static discharges.
Observations confirm the conclusion that static discharges (shocks) which might be associated with the work are not of themselves likely to endanger the health of any worker.
Some general measures which should serve to moderate or eliminate any shocks that might occur are suggested.
Last March (1986) the question of whether static shocks received from handling plastic parts might endanger the health of a worker was raised by Mr. Don Hall, IHSB Sarnia in a telephone conversation. The concern arose from a work refusal at North American Plastics Ltd. in WalÂlaceburg, Ontario. Mr. Hall was advised that such shocks are not uncommon during the winter heating season when relative humidity levels often drop to particularly low values and that though such shocks, if repeated could be very annoying, they were not known to be damaging. They occur whenever objects at different electrical potentials (voltage) are brought into contact. When humidity levels are normal or high, the ambient air is sufficiently conductive that the voltÂage differences cannot become large. Thus even though charge transfers still occur they are less effective in establishing large potential differences. Consequently discharges (shocks) are not perceptible. On the other hand when humidity levels are low, voltage differences can become large and then discharges (shocks) accompanied by arcs (sparks) will occur. It is not uncommon for potential differences of 10,000 V or more to occur and if the air is very clean, voltages as high as 30,000 V and above may occur. Fortunately the amount of charge available to be transÂferred is small so that the currents occurring during the discharge are low and not harmful. Most people experience such shocks from time to time after walking across a carpeted area and touchÂing a metal object or another person.
The worker who is most concerned about the shocks is Ms. Marie Roy. During our discussions about the situation she indicated she had experienced arcs as long as 5 cm although typically they were only about 1 cm in length. On the other hand, other workers reported they had never experienced any shocks in as many as three years of work on the line in question. This presents a confusing picture since it is virtually impossible for one individual to experience shocks under conditions where another does not.
Although shocks were not occurring at the time of our visit, the work situation observed remains a clear candidate for producing shocks under low humidity conditions. Several factors contribute to that potential among them - the use of an air line to blow dust and particles from the surface of the vinyl door parts, the virtually universal use of rubber soled footwear, the slidÂing of cartons along the floor and the handling of sheets of polyethylene used to separate indiÂvidual parts within the cartons.
At least three measures are available to eliminate shocks or at least moderate their severity when they might occur.
i) Monitor humidity levels and ensure that relative humidity does not fall below about 30%. (This would normally only apply during the heating season).
ii) Instal a static eliminator cartridge of appropriate capacity on the air line. (Suitable devices are available from 3M).
iii) Encourage the use of more conductive footwear - natural (i.e. leather) soles rather than synthetics (i.e. rubber foam, neolite, crepe, etc.)
Given all of the evidence, we are satisfied that at times employees did receive static shocks from the Chrysler line, particularly under low humidity conditions. Such shocks are not harmful, and no employee other than the complainant raised a concern about them. We are unable to accept the complainant's claim that she received a shock whenever she touched a part on the line. In this regard we note both Dr. Muc's opinion that it is virtually impossible for one individual to experience shocks under conditions where another does not, as well as the fact that the comÂplainant did not receive any shocks when she touched parts on the line during Mr. Mortensen's investigation. Having said this, however, we do not doubt but that on occasion the grievor did receive static shocks off the line.
On March 10, 1986 an incident occurred which did not involve static shocks. The comÂplainant was assigned to tape lower parts on the Chrysler line. According to the complainant, the fork lift operators had pushed the boxes containing the parts too close to the line, with the result that a part on the line pushed her into a box. The complainant advised a foreman of what had occurred. The foreman flagged down both of the fork lift drivers on duty and told them not to push the boxes so close. According to the complainant, one of the fork lift drivers initially objected to the direction, but subsequently did obey it. Upon learning of what had occurred, Mr. Lemak disÂcussed the matter with the complainant and agreed with her suggestion that a railing be installed to ensure the boxes were not pushed too far forward. Mr. Lemak then transferred the complainant to other work while the railing was being installed. The complainant characterized what occurred as a work refusal, in that she refused to continue to work without a railing. Mr. Lemak, however, charÂacterized it as a recommendation from the complainant which he acted on. On March 11, 1986 the complainant telephoned the Sarnia office of the Industrial Health and Safety Branch and advised Mr. Hall the Manager of what had occurred.
On March 12, 1986 the complainant was one of several employees who were laid off. The complainant testified that initially she saw nothing unusual about her layoff, particularly given that she knew that several employees with more seniority than her had also been laid off. SubseÂquently, however, the complainant became concerned about the propriety of her layoff when two employees from another department with less seniority than she spent some time working in her department. The company contended that the movement of the two more junior employees was permitted by a collective agreement provision allowing the company to make temporary adjustÂments without regard to seniority. The complainant pursued the matter of her layoff, and on March 13th the complainant, accompanied by two representatives of the union, met with Mr. Brown to discuss the matter. Following discussions about the layoff, Mr. Brown mentioned that he had been advised that the complainant had telephoned the Industrial Health and Safety Branch concerning the events of March 10th. Mr. Brown referred the complainant to certain provisions in the collective agreement which set out a procedure for dealing with health and safety concerns. The complainant replied that nothing in the collective agreement could prevent her from relying on her rights under the Act. Mr. Brown agreed with this contention, but indicated he would prefer to handle matters internally. Mr. Brown also indicated that he had been advised by several employees that on March 10th the complainant may have deliberately fallen into the box. The complainant vehemently denied that this had been the case. Following the meeting on March 13, 1986, the union filed a formal grievance challenging the propriety of the complainant's layoff. The company continued to assert that the layoff had been proper. On June 12, 1986 the union's executive board grievance committee considered the matter and decided not to proceed any further with the grievÂance.
The complainant contends that her layoff on March 12th was a reprisal for her conduct on March 10, 1986. It will be recalled that immediately after the events in question the fork lift drivers were directed not to push the boxes as close to the line as they had been doing. Mr. Lemak subsequently discussed the incident with the complainant and agreed with her suggestion that a railing be installed. The railing was installed shortly thereafter. In that the respondent's officials agreed with the concerns raised by the grievor and took immediate corrective steps, it seems highly unlikely that they would subsequently lay her off for having raised her concerns. In addition, other employees were laid off at the same time as the complainant. The temporary reassignment of other employees to work in the complainant's department was apparently sactioned by the collective agreement. Given these considerations, we are satisfied on a balance of probabilities that the comÂplainant's layoff on March 12th was not likely a result of her actions on March 10th.
The complainant was due to return from her layoff on March 17, 1986; however, she called in sick. She did return the following day, March 18th. At the commencement of her shift, Mr Lemak advised the complainant that she would be assigned to the Chrysler line hanging and cleaning parts. Mr. Lemak then asked the complainant to read and sign job instruction sheets related to the line. The company had previously asked most other employees to read and sign simiÂlar work sheets. The complainant indicated that she would not sign the job instruction sheets and would not perform the work because she felt it was unsafe. Mr. Lemak testified that he offered to get someone from the company's health and safety committee to attend, but the complainant refused this offer, insisting instead that a union committee person be summoned. When cross-exÂtmining Mr. Lemak, the complainant asked him why he had not allowed her a union representaÂtive, to which Mr. Lemak replied that the matter did not require a union representative. The comÂplainant called as a witness Mr. Len Bedell, president of the union. The questions put by the complainant to Mr. Bedell related to the right of employees to union representation. Later, when testifying on her own behalf, the complainant stated that she had told Mr. Lemak she had wanted anion representation. When making her final submissions, however, the complainant contended that she had asked Mr. Lemak for a health and safety committeeman. Notwithstanding this claim, we are satisfied on the evidence that in fact the complainant did not ask for a health and safety committeeman but rather for a union committee person.
Mr. Lemak testified that while the complainant advised him she felt the job on the Chrysler line to be unsafe, she repeatedly declined to tell him why. This is what Mr. Lemak subsequently reported to other members of management, including Mr. Brown. The complainant, howÂever, testified that she told Mr. Lemak she felt the work was unsafe because she received shocks off the line and had an allergic reaction to the cleaning solvent used on the line. The complainant further contended that when she later talked to Mr. Don Caryn, a union committee person, she also advised him as to the reasons for her refusal. Mr. Caryn, however, denied that this had been he case. Taking all of this evidence into account, we are satisfied that while the complainant advised Mr. Lemak that she felt the job was unsafe, she declined to tell him why.
As already indicated, after the complainant refused to read and sign the job instruction sheets, she stated that the job was unsafe and requested that a union committee person be called. Mr. Lemak asked why she felt the job was unsafe, to which the complainant did not reply. Mr. Lemak then asked the complainant if she wanted someone from the occupational health and safety committee to attend. The complainant replied that she did not. The complainant asked Mr. Lemak why she was being harassed. Mr. Lemak responded that she was not being harassed. Mr. Lemak then directed the complainant to wait in the cafeteria.
Mr. Lemak went to see Mr. Peter Walker, the respondent's plant manager. Mr. Lemak advised Mr. Walker that the complainant refused to work but would not tell him what was unsafe. Mr. Walker then placed a call on a "speaker phone" to Mr. Brown, the personnel manager, who was at home ill. Mr. Lemak and Mr. Brown did most of the talking. Mr. Lemak advised Mr. Brown in general terms of what had occurred. Mr. Brown directed Mr. Lemak to again talk to the complainant about having the matter investigated by the plant health and safety committee. It was Mr. Brown's recollection, although not Mr. Lemak's, that he expressly referred to having Ms. BarÂbara Starr, the employee co-chairperson of the health and safety committee, investigate the matÂter.
Mr. Lemak went to the cafeteria and asked the complainant to accompany him to his office. Mr. Lemak again asked the complainant to read and sign the job instruction sheets. The complainant refused and asked to see a union committee person. Mr. Lemak stated he would bring the safety committee in to check the problem, the complainant indicated she wanted union repreÂsentation. The complainant, who testified that she always carries a copy of the Act in her purse, brought out the Act, waved it in front of Mr. Lemak and then read from sections 23 and 24 while pointing her finger at Mr. Lemak. It is clear that by this point both the complainant and Mr. Lemak had become quite upset. The complainant was of the view that Mr. Lemak was denying her union representation. Mr. Lemak could not understand why the complainant did not want a health and safety representative. He also felt the complainant was acting inappropriately by waving her finger at him.
We would pause at this point to note that in these proceedings the complainant never explained her objection to having someone from the health and safety committee attend. Ms. Starr, the employee co-chairperson of the committee, who is well versed in safety matters, was present in the plant. Although several documents issued by the Ministry of Labour referred to Ms. Starr as the union's safety representative, Ms. Starr testified that as of March 18, 1986 the union had not selected such a representative, although she subsequently applied for the position. Having regard to Ms. Starr's testimony in these proceedings, we incline to the view that had Ms. Starr become involved in the events of March 18th, the complainant's concerns likely would have been resolved in a reasonable manner. For his part, Mr. Lemak's only explanation for not calling a union committee person was that, in his view, the complainant did not require one. Don Caryn, a union committee person, was on the premises. Mr. Caryn testified that had he been called in, he would have arranged for someone from the health and safety committee to attend. He indicated that this was the procedure he had followed in other safety matters. On at least one previous occaÂsion Mr. Brown had himself sought Mr. Caryn's assistance in investigating a work refusal. It is noteworthy that although Mr. Lemak advised Mr. Brown on March 18th that the complainant had indicated she did not want a health and safety representative, he did not tell Mr. Brown that she had requested the presence of a union committeeman. As detailed below, subsequently both Mr. Walker, the plant manager, as well as Mr. Brown suggested that Mr. Caryn talk with the complainÂant.
While Mr. Lemak was meeting with the complainant for the second time, Mr. Brown telephoned Mr. Hall of the Sarnia office of the Industrial Health and Safety Branch to discuss the situation. Mr. Hall advised Mr. Brown that Mr. Mortensen, a health and safety inspector, would be at the plant the following day at 9 a.m. and that Mr. Lalonde, Ms. Starr, the complainant, as well as himself, should be available to meet with Mr. Mortensen. Following his discussion with the complainant, Mr. Lemak again telephoned Mr. Brown. Mr. Brown told Mr. Lemak to have the complainant punch out and return the next day at 9:00. Mr. Lemak passed these instructions on to the complainant, who refused to leave. When giving his evidence, Mr. Lemak was asked why the complainant was not assigned alternative work. Mr. Lemak's reply was that this was not practical in that other employees were on layoff and the company had no other work for her. In fact, howÂever, another employee was subsequently reassigned to the work which the complainant had refused to do, after first being advised of the refusal. The respondent led no evidence as to why the complainant could not have been assigned to the job that would otherwise would have been perÂformed by this other employee, particularly given that it was still near the commencement of the shift. Taken as a whole, the evidence suggests that at the time management officials did not put their minds to the possibility of assigning the complainant to other work. Rather, Mr. Brown, who was off work ill, simply directed Mr. Lemak to send her home.
After refusing to leave the plant, the complainant began to page Mr. Caryn on the comÂpany's intercom system. The complainant testified that she paged Mr. Caryn "several times". Mrs. Muriel Hardy, an employee who testified on behalf of the complainant, however, estimated that the complainant was on the intercom for about half an hour. Not knowing how to respond to the situation, Mr. Lemak again telephoned Mr. Brown. Mr. Brown indicated that he would drive out to the plant. As it happened, Mr. Caryn was outside the plant when the complainant began to page him. He testified that on entering the plant he heard the complainant page him 10 or 11 times. Mr. Caryn went to the shipping office to get permission from Mr. Kaminsky, his immediate supervisor, to go and see the complainant. At the shipping office he met Mr. Kaminsky, Mr. Lemak and Mr. Walker, who were discussing the situation. Mr. Walker asked Mr. Caryn if he would go and straighten out the matter. Mr. Caryn made a comment, the full text of which is in dispute, about not wanting to talk to "that lady". In these proceedings Mr. Caryn stated that what he meant was that he did not want to talk with the complainant because she was all worked up. Shortly after this Mr. Brown arrived. Mr. Brown asked Mr. Caryn to advise the complainant that she was suspended for her refusal to punch out, and that if she did not leave, the police would be called. Mr. Caryn went and advised the complainant of what he had been told. According to Mr. Caryn, the comÂplainant was very upset and he had to tell her to slow down because she was talking very quickly, the complainant asked Mr. Caryn why she had been denied union representation, to which Mr. Caryn replied he did not know. The complainant asked Mr. Caryn to repeat his message from Mr. Brown in front of a witness. After receiving Mr. Brown's permission to do so, Mr. Caryn repeated its comments to the complainant in front of Mrs. Hardy. The complainant then left the plant.
On March 19, 1986 Mr. Brown sent a letter to the complainant formally advising her of her suspension. The letter read as follows:
Dear Marie:
This letter is to advise you that you are suspended without pay from Wednesday. March 19, 1986, until Friday, March 21, 1986. You are to report to work at your regular starting time FriÂday, March21, 1986.
This action is taken as a result of your actions Tuesday, March 18, 1986. Your deliberate insubÂordination by refusing your Foreman's instructions to punch out and go home. In addition, your refusal to state your concerns on an alleged unsafe working hazard is most serious as it places other employees in danger. Also, your general attitude and threatening tone used towards your Supervisor cannot be tolerated.
I hope that this situation will not occur again and that further discipline is not needed. However, should this situation happen again I will be forced to impose increasing discipline up to and including termination.
On March 19, 1986 Mr. Mortensen, the health and safety inspector, arrived. Prior to fleeting with Mr. Mortensen, the complainant met briefly with Mr. Lalonde and Ms. Starr. Ms. Starr asked the complainant why she had not called her, to which the complainant replied she did not know who was on the health and safety committee. These three individuals later joined Mr. Brown, Mr. Lemak and Mr. Mortensen in Mr. Walker's office. During the discussion in the office, the complainant indicated that her concern had been with static shock, and that rather than be assigned to other work she had been suspended. The complainant further indicated that the events the previous day had been due to Mr. Lemak seeking to make her do a job she had refused several times during 1985. Mr. Lemak denied that this had been the case, indicating that while the comÂplainant had raised the issue of shocks in 1985, it had not involved a work refusal. The complainant testified that during the course of the meeting in the office, both Mr. Brown and Mr. Lemak made a lot of statements to her detriment and that they lied about things and then got caught in their lies. No details were given as to these allegations.
Mr. Mortensen and the others then went to the work area to investigate the possibility of static shock on the Chrysler line. A number of employees were working on the line. The comÂplainant was asked to touch a part on the line while Mr. Mortensen held her wrist. This was repeated about three times. The complainant did not receive a shock. It was the complainant's tesÂtimony that she told Mr. Mortensen that she also had concerns about the cleaner used on the Chrysler line. Mr. Brown, however, testified that there had been no mention of a cleaner. This disÂcrepancy in the evidence was explained by Ms. Starr, who testified that she heard the complainant mention the cleaner to Mr. Mortensen, but that the others present may not have been able to hear what was said. Mr. Mortensen made no attempt to inspect the cleaner. Following his visit, Mr. Mortensen issued the following report:
Special visit to address a work refusal concern.
Persons Contacted: Mr. M. Brown Ind. Rel. Supervisor Mr. R. Lalonde Chairperson of U.A.W. Local 251 Ms. M. Roy Worker refusing Ms. B. Starr Worker and Health and Safety
Committee Rep. of U.A.W. Local 251 Mr. S. Lemack Supervisor
Date and Time of Refusal - Mar. 18 @ 15:30 hrs.
To resolve the issue Ms. Roy was requested to return to the operation during the A.M. of March 19/86. Another worker was assigned with notice of prior refusal to perform normal work duties which had caused the initial refusal.
An alleged reprisal activity was noted and statements have been provided or taken.
The concern for refusal was identified as "static shock coming off of the Chrysler line".
The work area was reviewed and it is noted that some workers have acknowledged experiencing similar "shocks" and other workers have not experienced such.
Details of line activity:
Parts measure approx. 78" X 16"
Weight is approx. 10 lbs.
Material - A.B.S. plastic mold 1/4" panel.
Speed - Approx. 15' per inch.
Distance - Approx. 300" on a chain driven free-hanging conveyor
Evaluation of the aforementioned information has deemed that the likelihood of a hazard does not exist and that the effects of "static shock" which could be conveyed from the line is not likely to endanger.
Disposition
No orders are issued relative to the concern of static shock from the "Chrysler line".
Section 23 and 24 of the Act were reviewed and direction to contact the Ontario Labour RelaÂtions Board made should (illegible) occurrences relative to the aforementioned (illegible) warÂrant such action.
On June 15, 1986, Ms. Starr wrote to the Ministry of Labour asking for a reinvestigaÂtion. Part of the reinvestigation involved the visit of government officials to investigate static shock which led to the report referred to earlier wherein Dr. Muc concluded that any static shocks were not likely to be a danger.
The complainant's first scheduled work day after her suspension was March 21, 1986. She did not report for work that day but rather went to see her doctor because, in her words, she was "strung out". Her doctor advised the complainant that due to her nerves she should not go into work but rather apply for sickness and accident benefits from the company. Later that day the complainant was telephoned by "Sandy" in the personnel department who informed her that employees in her department were being laid off. The complainant advised Sandy that she had already been put on sickness and accident by her doctor. Sandy then indicated that the complainÂant should either pick up a claim form, or have someone else do so for her, which is what the comÂplainant did. The complainant completed the form the following day. Prior to the form being forÂwarded by the company to Canada Life, the insurance company responsible for benefit payments, Mr. Brown asked that the company nurse handling the claim note on the form that the complainÂant had been laid off. Canada Life subsequently concluded that due to the complainant's right to bump more junior employees in other departments, her layoff did not disqualify her from receiving benefits.
The complainant contended that Mr. Brown subsequently attempted to stop Canada 'Life from paying her benefits in reprisal for her refusing to work in March. The evidence, how-ever, establishes that it was Canada Life on its own initiative that raised the issue of whether the complainant was medically entitled to benefits. After Canada Life had received certain medical reports from the complainant's doctor, including an oral report, it concluded that the complainant 'was in fact entitled to receipt of benefits.
The complainant continued to receive benefits long after she otherwise would have been recalled to work. Indeed, she was still off work during the currency of the hearings into her complaint. The complainant contends that her nervous problems and resulting lengthy absence from work were caused by the company's conduct towards her, most particularly its conduct on March 18, 1986. The complainant accordingly seeks payment for a seven-day waiting period prior to the commencement of sickness and accident benefits, as well as the difference between sickness 'and accident benefits and her regular rate of pay. The complainant led no medical evidence to link the problems with her nerves with the events of March 18, 1986. In the absence of such evidence, one would not reasonably expect that the events of March 18, 1986 would give rise to problems with her nerves that would incapacitate her for a lengthy period of time. In these circumstances, we are led to conclude that the complainant's problems with her nerves and resulting lengthy absence from work were likely due to factors not connected with the events of March 18, 1986.
As indicated above, we are satisfied that there is no merit to the complainant's allegaÂtions insofar as they relate to events prior to March 18, 1986, or subsequent to the complainant's two-day suspension arising out of events on March 18th. We turn now to review the events of that day in light of the requirements of the Occupational Health and Safety Act.
There is no doubt but that the complainant refused to work on the Chrysler line. Her refusal was clearly related in part to the complainant's view that she should not have to read and sign the job instruction sheets. However, given all of the evidence, we are satisfied that she was also concerned about her personal safety, and that this concern was a motivating factor in her refusal to work on the line. We do not believe that the complainant's work refusal was related to concerns about the use of the cleaner. Rather, the complainant appears to have raised the cleaner as an afterthought. As noted above, when the complainant raised the matter of the cleaner, she did so in a brief comment to Mr. Mortensen on March 19, 1986 out of earshot of management. The fact that Mr. Mortensen's report of March 19th makes no mention of the cleaner, indicates that he did not perceive the complainant's comment as involving a claim that the cleaner had been one of the reasons for her work refusal.
With respect to the static shocks, while we cannot accept the complainant's claim that she continually received shocks off the Chrysler line, as indicated above, we do accept that the complainant received some static shocks off the line. Although Dr. Muc's report issued after the events in question indicates that such shocks will not endanger a worker, we are satisfied that on March 18th the complainant had a real personal concern about the safety of working on the line where she might receive such shocks.
Section 23(3) of the Act provides as follows:
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 condiÂtion of the work place or the part thereof in which he works or is to work is in contraÂvention of this Act or the regulations and such contravention is likely to endanger himself or another worker.
Given the wording of this section, we are satisfied that when a worker initially refuses to do certain work, it matters not whether the work is or is not unsafe. Rather, the test is whether the worker had reason to believe that the work might endanger herself or others. We are satisfied that the complainant had reason to believe that working on the Chrysler line might endanger herself. Accordingly, it follows that the complainant had the right to refuse to perform the work.
- Sections 23(4) and (5) set out the obligations on a worker and employer upon a refusal to do particular work as follows:
23.-(4) Upon refusing to work or do particular work, the worker shall promptly report the cirÂcumstances 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.
The complainant was required by section 23(4) of the Act to promptly report the cirÂcumstances of her work refusal to management. The circumstances of a work refusal must logically include the reasons for believing the work unsafe, since, without such information, management would be seriously hampered in any attempt to investigate the matter. Mr. Lemak on a number of occasions asked the complainant why she felt the work to be unsafe, and on every occasion she refused to tell him. In failing to provide the information the complainant was herself in breach of the Act.
Section 23(4) of the Act states that management, in the presence of a worker who has refused to perform certain work, must forthwith investigate the matter 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.
Mr. Caryn, the union committee person paged by the complainant, did not fit any of the three catÂegories of persons referred to in section 23(4). While he was a union committee person, in that secÂtion 1(1) of the Act defines a "committee" as a joint health and safety committee, he clearly was not a "committee member" referred to in section 23. An individual who did come within section 23(4) and who was at work at the time was Ms. Starr, the employee co-chairperson of the health and safety committee. Had the complainant agreed to Mr. Lemak's proposal that a member of the health and safety committee be summoned, it is reasonable to infer that the person involved would have been Ms. Starr. Indeed, it will be recalled that Mr. Brown testified that he had expressly mentioned Ms. Starr's name to Mr. Lemak.
- The respondent did not investigate the complainant's work refusal as required by secÂtion 23(4). However, given the complainant's conduct in declining to meet with a member of the health and safety committee as well as her refusal to tell Mr. Lemak why she felt the work to be unsafe, it is doubtful that a meaningful investigation could have been conducted. What the comÂpany did do was to immediately proceed to the next step contemplated by the Act, namely an investigation by an inspector. The period prior to an investigation by an inspector is dealt with by section 23(10) which provides as follows:
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 proviÂsions 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 pracÂticable, gives other directions to the worker.
- Section 23(10) indicates that pending the investigation by an inspector, a worker is to
Remain near her work station during her normal working hours unless assigned reasonable alternaÂtive work, or if such an assignment is not practicable, the employer gives her other directions. In certain circumstances, such other directions might include sending an employee home. However, such a direction can only be given if the assignment of reasonable alternative work is not practicaÂble. As already indicated, we are of the view that in all likelihood reasonable alternative work was available to which the complainant could have been assigned. We do not view the company's deciÂsion to send the complainant home as being motivated by a desire to penalize her for her refusal to work. Nevertheless, the failure to assign her alternative work in the circumstances of this case, amounted to a penalty to the complainant contrary to section 24 of the Act in that it resulted in a lowering of her take-home pay.
- It will be recalled that the complainant was suspended for two additional days for refusÂing to follow Mr. Lemak's instructions and punch out on March 18th. The complainant contends that this was a further penalty imposed on her for exercising her right to refuse work she believed unsafe. As indicated above, we believe the respondent should have assigned alternative work to the complainant and not sent her home. Notwithstanding this, we are also satisfied that the comÂplainant's conduct in refusing to leave the plant and then using the paging system for approxiÂmately half an hour was not an appropriate response. Other means were open to the complainant to challenge the respondent's conduct. In all the circumstances, we are satisfied that the suspension was not a reprisal for the complainant's refusal to work, but disciplinary action for her inappropriÂate behavior. Notwithstanding this conclusion, however, we are of the view that a two-day suspenÂsion was not an appropriate response. While the complainant acted inappropriately, had Mr. Lemak been more flexible, the entire situation could likely have been resolved. Section 24(7) of the Act, which is set out below, gives the Board a discretion to modify a disciplinary penalty in a situation such as this:
24.-(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disÂciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substiÂtute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.
Given all of the circumstances, we are of the view that a one-day suspension would have been a much more appropriate penalty. Accordingly, we direct that a one-day suspension be substituted for the complainant's two-day suspension. The complainant is to be compensated for her losses with respect to the other day.
While we have found a number of the complainant's allegations to be without merit, we have concluded that the company breached the Act by sending the complainant home on March 18th and that the two-day suspension imposed on the complainant for her improper conduct that day was, in all the circumstances, unduly severe. These findings are not, however, meant to indiÂcate our approval of the complainant's conduct. Her refusal to meet with a member of the health and safety committee and to advise the company as to why she felt working on the Chrysler line was unsafe can only be viewed as ill-considered and irresponsible and, as noted above, resulted in the complainant herself breaching the Act.
We will remain seized of this matter in the event the parties are unable to agree upon the amount of compensation payable to the complainant.
CONCURRING OPINION OF BOARD MEMBER D. A. PATTERSON;
I concur with the decision of the Board with the following concurring opinion.
The Board was faced with a number of alleged incidents which the complainant charges were and are related to the work refusal on March 18, 1986.
The Board did address these allegations and dealt with each of them. The allegation around the refusal is the issue the Board is charged to make its findings on.
The Board heard evidence that the complainant was discharged shortly after her comÂmencement of work at North American Plastics. The complainant filed a complaint with the OLRB in late '84 alleging a breach of section 24 of the Occupational Health and Safety Act ("the Act"). The complainant and respondent settled the matter in February 1985 with the complainant being reinstated. The complainant stated that since her reinstatement, all these incidents have ariÂsen and are connected to her original discharge and subsequent reinstatement.
The Allegations
The alleged incidents which the complainant claims are part of the respondent's actions against her are:
the use of Cleaner 109;
incident in which she fell in a parts box;
improper layoff;
refusing to sign work sheets;
refusing to punch out and leave company premises.
All these items are not part of the complaint before the Board. It is my opinion they are a labour relations matter or a matter which should be addressed by the in-plant Safety & Health CommitÂtee. While there is a definite link between labour relations and safety and health and the practiÂtioners of labour relations often get the two mixed up, it has been my experience in this case that the complainant used what she thought that she was entitled to under the Act. The Act itself is not a collective agreement and is not to be treated in the same fashion as alleged violations of the C.B.A.
The respondent in this case did not follow the procedure as laid out in the Act resulting in the complainant being sent home and receiving a letter from the respondent's agent, Mr. Brown, giving her 3 days off and threatening her employment with the respondent.
Under section 24, I concur with the Board that she should not have been penalized for her refusal under section 23 of the Act. The complainant's knowledge and utilization of the Act is entirely her legal right on the job. Once the company treated the complainant's action as a refusal, then the respondent was charged with its responsibility to follow the Act.
Section 24(1) of the Act clearly spells out what the employer cannot do if an employee exercises his or her rights under the Act. That section provides:
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.
- I conclude by saying that if the employer had not overreacted in this situation, the entire matter could have been rectified the same day.