Ralph Marion, Jim Fawcett, Roland Vautour v. Commonwealth Construction Company, 1987 CanLII 3068

[1987] OLRB Rep. July 961

0615-86-OH; 0616-86-OH; 0617-86-OH Ralph Marion, Jim Fawcett, Roland Vaut­our, Complainants v. Commonwealth Construction Company, A Division of Guy F. Atkinson Ltd., Respondent

BEFORE: Robert J. Herman, Vice-Chair, and Board Members R. J. Gallivan and B. L. Arm­sfrQng.

APPEARANCES: John A Desotti, Roland J. Vautour, Ralph Marion and James Fawcett for the complainants; James G. Knight, Thomas Zyvitski and R. A. S. March for the respondent.

DECISION OF THE BOARD; July 2, 1987

1The name of the respondent is amended to read: "Commonwealth Construction Company, A Division of Guy F. Atkinson Ltd.".

2In this consolidated proceeding, the complainants each allege that they were discharged by the respondent employer in contravention of their rights as contained in section 24(1) of the Occupational Health and Safety Act (hereinafter, the "Act"). The complainants allege they were constantly pointing out safety infractions to the respondent and it discharged them to prevent them from raising further safety problems or from insisting on the correction of those problems already identified. They therefore claim they were discharged because they were acting in compliance with the Act or regulations, or because they were seeking its enforcement. The respondent maintains it did not discharge them for these reasons, but because they were refusing to do their regular work and were instead taking company time, without authorization and after notice to cease doing so, to ho~ discussions with fellow employees, disrupting the workplace and causing other employees not to or. It denies that any part of the reason for discharging them was because of the health and safety matters they raised. In response, the complainants deny they were taking regular work time to deal with their health and safety concerns, and maintain they raised such concerns only on their own time, before or after working hours, during breaks, or during the regularly held safety meet­ing with the company, when it was expected that they raise these concerns. They also deny that they in any way caused disruptions among other employees. The complainants do not argue, in this respect, that they were entitled to pursue their safety concerns to the detriment of performing their regular work, but only that their activities did not, for even a moment, occur when they were on work time.

I. The Facts

3Algoma Steel Corporation owned the construction site and was constructing a new seamless tube mill under the supervision of Fenco Engineers Inc., the project manager. The res­pondent employer was one of numerous contractors working under the overall supervision of Fen­co, and was engaged for three separate contracts: one for piping, one for mechanical and piping, and one for electrical work. The respondent worked at Algoma on these projects from approximately the end of October, 1985 until July, 1986. The tube mill project was large, and the respon­dent's employees had to regularly walk through areas of the mill other than the one where they worked.

4The work week began every Monday morning with a safety meeting convened by the respondent, which all employees of the respondent were expected to attend, during which safety concerns were raised and discussed. Attendance was taken at each meeting, as were extensive min­utes of the discussions, and those minutes were subsequently typed up and made available to employees. At these meetings the three complainants, along with three or four other employees, regularly raised safety concerns. Except as noted below with respect to Marion, there was no evi­dence nor even any suggestion that any of the three complainants raised safety concerns with man­agement except at these safety meetings. Nor was there any evidence that the manner in which the three complainants raised their concerns, and the frequency with which they did so, was in any way different from the conduct of the other three or four employees who also regularly raised concerns during these meetings. Those other individuals were not subjected to any discipline, though their conduct during the meetings was indistinguishable from the conduct of the complainants.

5Each of the complaints filed is almost a carbon copy of the others and each lists approxi­mately 83 identically worded examples of the "concerns and problems expressed by the complain­ant". Counsel for the complainants drafted all 3 complaints and, in itemizing the concerns the com­plainants claimed they raised with management, copied virtually verbatim the minutes taken by the respondent at the safety meetings. No specific evidence was led of any of the complainants raising even one of the 83 particularized problems, only generalized evidence that they continually raised safety problems during these meetings. We note that some of the complaints were raised at meet­ings which none of the complainants attended, yet they claim they were discharged for raising them. Nevertheless, we are satisfied that each of them did at numerous safety meetings raise many matters which they felt represented safety problems. In addition, the complainant Marion had con­tacted his MPP to discuss safety concerns he held about the workplace, and had advised manage­ment he would be contacting the Ministry of Labour. He also refused specific assignments on sev­eral occasions, because he felt conditions unsafe. On each such occasion he was given another assignment immediately, without any quarrel or discipline from management.

6Employees of the respondent were represented in health and safety matters by Alfred Gemus, who was also the union steward. It is common ground that Gemus was the properly desig­nated health and safety representative (cf. section 7 of the Act) and that none of the complainants was ever properly appointed or designated health and safety representative. As the safety meetings continued to be held each week, and as the complainants became frustrated because they felt their concerns were not being resolved, the complainants and some other employees attempted to nomi­nate their own health and safety representative. The complainants testified they were not trying to replace Gemus, only trying to insure that their own concerns were being presented. The employees involved in nominating their own representative were not confident that Gemus was an effective health and safety representative, and they felt someone had to begin assuming that role. Neither the union executive, nor the majority of union members, shared the complainants' concerns in this respect.

7Some employees approached the complainant Marion and asked that he act as their health and safety representative. Marion testified he was "nominated by the men" and that it was imperative that something be done quickly to rectify the unsafe conditions. Accordingly, Marion went to the office of Thomas Zyvitski, the respondent's electrical superintendent for the project. Marion advised Zyvitski he was now a safety representative for the employees, and he further indi­cated he would be conducting his own safety inspections, in addition to whatever inspections Gemus performed. He also advised he would be doing these inspections on company time. Zyvitsi warned Marion against taking work time to perform inspections and asked that he do the work his subforeman directed of him.

8Zyvitski subsequently observed Marion conducting inspections, speaking to employees, and contacting the safety representatives of other companies who were working at the site, all dur­ing times when he should have been performing his work. Zyvitski told Marion he was not to take time off work in order to act as a safety representative. Zyvitski stated he felt Gemus was the offi­cial representative, and only he was entitled to cease performing his regular work and do safety inspections during company time. Gemus, the designated health and safety representative and shop steward, was present when Zyvitski made these comments to Marion. Zyvitski issued Marion a written warning, dated February 26, 1986, that stated, in part, "that from this point onward, if you are found in an area other than your work area during the hours of work and you do not have a valid reason for being there, you will be dismissed immediately from Commonwealth's employ." I~ response to receiving the written warning, Marion advised Zyvitski he would continue as he had, since (he then said) he had the right to do so under the Occupational Health and Safety Act. Notwithstanding Marion's claim that he was legally entitled to continue, the written warning was not grieved.

9At the hearing Marion initially testified that he had never investigated safety problems during regular working hours, and he never wandered from his job. This testimony was consistent with the claim of the complainants that they never took any company time for their activities. Mar­ion subsequently admitted, when pressed in cross-examination, that he did wander from his job in order to take photographs of what he perceived to be safety problems. He also testified that he did not pursue his activities on the job, "at least at the beginning." On the totality of the evidence, including Zyvitski's testimony that he repeatedly observed Marion in parts of the site where Mar­ion was not working, continuing to investigate safety matters at times when he should have been performing his job, we are satisfied Marion attempted to mislead the Board and that he continued to leave his work station after receipt of the written warning, he continued to investigate safety matters at the work site when it meant ceasing to do his regular work, and he moved about the site taking photographs. Marion did so repeatedly and on numerous occasions, with the result that on t~1ese numerous occasions he was not performing his assigned work. We are further satisfied that ~ hen confronted by Zyvitski during these wanderings, he denied that he was wandering or that he as looking for unsafe working conditions.

10On March 7,1986, Marion was handed a termination notice by Zyvitski, on the grounds Marion had ignored the prior warning, had continued to leave his work in order to investigate safety problems, and because he had broken an Algoma Steel Corporation rule by using a camera on site.

11In the week following Marion's termination, Zyvitski was made aware that the other two complainants, Fawcett and Vautour, were also wandering around the work site and leaving their own work stations, purportedly in order to investigate safety matters themselves, or at least to attempt to replace Marion as the "alternate" health and safety representative (as the complain­ants characterized it). After being advised of this, over the next few days Zyvitski observed Faw­cptt and Vautour in parts of the site external to their work areas, gathering groups of employees together and engaging in discussions with them. Work ceased during these discussions. Zyvitski had the general foreman get the employees to return to work, and Fawcett and Vautour to return to the area of the site where they were supposed to be working.

12As Marion had in his testimony, both Vautour and Fawcett initially denied that they had, for even a moment, ever discussed health and safety matters with fellow employees during regular working hours, other than at the weekly safety meetings, let alone with any loss in prod­uctive work time. As noted, counsel for the complainants based his case with respect to Vautour and Fawcett on the proposition that they had never taken company time to deal with health and safety matters. As with the testimony of Marion, we prefer the evidence of Zyvitski where it con­flicts in this respect, both because of our observations of the manner in which the witnesses testi­fied and because of internal inconsistencies or implausibility in the testimony of the complain­ants. For example, Vautour and Fawcett were work partners for approximately three weeks prior to their terminations. They would therefore have been together for the great majority of each working day during this period. One of their common tasks involved using a "bender" machine. Because there was only one bender at the work site, employees regularly had to line up and wait their turn at the machine. During these waits, there was no useful work employees could perform. Vautour testified that he and Fawcett had waited their turn at the bender approximately 50 to 100 times. Vautour further testified that not once during those moments was there any discussion engaged in by either him or Fawcett with fellow employees over health and safety matters in the work place. That no such conversations occurred is highly implausible, given Fawcett's and Vaut­our's obvious and deeply felt concern about safety matters in the workplace, their constant efforts at safety meetings to improve what they perceived to be an unsafe work environment, and the fact that there was no useful work they could do while they waited. Although Fawcett initially testified, in support of Vautour's evidence, that neither he nor Vautour had ever discussed health and safety matters while waiting at the bender, in cross-examination he admitted they might have discussed such matters with fellow employees. Such evidence generally undermines Vatour's and Fawcett's credibility. We conclude Vautour and Fawcett attempted to mislead the Board in this respect. We are satisfied that both did wander around the job site, utilizing company time, time when they were scheduled to work and were being paid to work, to discuss health and safety matters with fel­low employees and the nomination of another employee to replace Marion as a health and safety representative. As noted earlier, it was not suggested that either Vautour or Fawcett ever raised safety concerns with the company during their regular working hours, other than at the safety meetings when other employees also raised them.

13After Zyvitski observed Fawcett and Vautour wandering around the site, holding these discussions with fellow employees, he asked Ray Shelstead, a site foreman and a member of the union executive, to speak to them and convince them to stop using company time to "orchestrate the removal of Gemus as health and safety representative." Shelstead subsequently did speak at least to Fawcett, relaying Zyvitski's concern and asking that both complainants cease and desist from engaging in their safety activities during their regular working hours. Shelstead subsequently reported to Zyvitski that he had spoken to both Fawcett and Vautour, but his discussions had been to no avail.

14In light of Shelstead's report that his approach had been fruitless, and in light of Zyvit­ski's previous observation that Vautour and Fawcett continued to use company time to hold their discussions, on March 13, 1986 Zyvitski handed written notices of termination to both Vautour and Fawcett. Those notices stated, inter alia, "you are being terminated from site in an effort to avoid further disruptions in the work." Each of them had previously received written warnings. On Janu­ary 11, 1986 Vautour had been warned for an incident with his foreman, during which they had been shouting at each other, which the company viewed as Vautour's fault. Fawcett had been warned on February 11, 1986 for refusing to do work to which he had been assigned (he did not refuse for safety reasons). Neither warning was grieved.

15Zyvitski testified his concern was not that Vautour or Fawcett were raising what they thought were health and safety problems, but that they were utilizing company time to do other than company work, and were further causing other employees to stop work. He felt the employees had a properly designated health and safety representative, Gemus, but a minority of them were not content to let Gemus represent them, nor were they content to seek to replace him during their own time. Both Vautour and Fawcett had received prior written warnings, though for unre­lated matters, yet they continued to be impossible to direct. In order to ensure that work was being performed, Zyvitski testified he decided it was necessary to discharge both of them. Any discipline less than discharge would be ineffective, Zyvitski felt, because neither the warning and discharge of Marion nor Shellstead speaking to them had had any curative effect.

II. The Argument

16In argument, counsel for the respondent submitted section 24(1) of the Act protected employees only when they had been dismissed because they had acted in compliance with the Act now because they had sought enforcement of the Act or its regulations. Counsel suggested that even a~ the end of the case, the Board remained unapprised as to what parts of the Act or its regulations might have been violated. The complainants had not pointed to any specific subsection of the Act or its regulations which the employer had allegedly violated, either during the events in question or at the hearing before the Board. The particulars set out in each complaint had been taken verbatim and chronologically from the safety minutes arising from the company's safety meetings. Counsel noted it was somewhat ironic that the company's accurate and proper recital of the safety concerns should now be raised against it, without any evidence of the complainants' having raised particular concerns, and without any allegation of a particular section of the Act the respondent might have breached because of its working conditions. Counsel submitted that many of the itemized partic­ulars did not involve even arguable violations of safety legislation. Additionally, many of the safety concerns had nothing to do with the respondent company and were not matters within the respon­dent company's control. The respondent reacted properly when those matters were raised, by expeditiously passing on such concerns to the employer or contractor who did have control of such matters, and also by continuing to seek their correction or enforcement. Since the concerns were not within the respondent's control, there was nothing more it could do. Counsel submitted the sole reasons for termination of the complainants were those set out in the notices of termination, as attested to in Zyvitski's evidence before the Board.

17Counsel further submitted that if the Board is satisfied the company did not breach section 24(1) of the Act in the discharges of the three complainants, it is not as a matter of law open to the Board pursuant to section 24(7) to substitute a penalty it might consider appropriate in the cir­cumstances. Alternatively, if the Board does have such jurisdiction, it ought to exercise it cau­tiously and deferentially. When complainants allege a scheme by an employer designed to circumvent the protections of the Act, but are unable to prove such matters at hearing, the Board should hesitate before second-guessing the employer's disciplinary response. The purpose of section 24(7), in counsel's submission, was to address situations in which an employee refuses to work, because he or she fears an unsafe working condition, but is nevertheless unable to prove at a hearing that the refusal was justifiable within the meaning of the Act. In such circumstances the Board may well consider the discipline imposed too extreme a company response, given a complainant's sincere yet unfounded fears, and substitute discipline the Board considers appropriate. The more remote however, from circumstances involving refusal to work because the employee feels personally in dan­ger, the more hesitant a Board should be to rely upon its jurisdiction under subsection 24(7). In counsel's submission, the respondent had met its onus under section 24(5), had satisfied the Board that the reasons for termination were only those reasons set out in the notices of termination, and the discharges were not motivated by any concern over the health and safety matters raised by the complainants nor by any concern over the complainants seeking to enforce the provisions of the Act. The complainants were each terminated for causing disruptions to the work force over signifi­cant periods of time, and in Marion's case, additionally for taking photographs of the workplace, in direct contravention of a rule of Algoma Steel Corporation. Had these employees had legitimate safety concerns, they could have and should have raised those concerns in the proper manner and through the proper procedures, by having their health and safety representative raise them, by refusing to perform work which they felt to be unsafe, or by attempting to replace the health and safety representative through the proper internal union procedures. Instead, they chose to disrupt the work force, without any legal right to do so, and continued to refuse to follow the proper procedures for raising safety concerns. In such circumstances, counsel submitted, it was perfectly proper for the employer to discharge them.

18Counsel for the complainants submitted the complainants were terminated because they were a "pain in the butt", and continually raised health and safety problems with the respondent. Counsel submitted that none of the complainants ever wandered from their jobs or ever used com­pany time to raise these matters or to discuss health and safety problems with other employees. In Marion's case, counsel conceded in final argument that at most he might have taken ten to fifteen minutes of company time, when he was taking photographs.

19Counsel observed that on several occasions the complainants had refused to perform their respective jobs because of such safety concerns, had contacted their local MPP, and had told management they might approach the Ministry of Labour in order to get it to investigate. The rea­sons for their terminations were linked, he argued, to their constantly raising these problems and the difficulties such persistence was causing the respondent. They were therefore discharged because they were acting in compliance with the Act or because they were seeking to enforce it. Counsel submitted it was incumbent upon the Board to make a determination as to whether the working conditions were a violation of the Act or regulations thereunder, and indeed the Board could not decide the section 24 issue until it did so. Counsel submitted that common sense, the photographs taken by Marion, and the provisions of the Act itself (he did not refer the Board to any specific section) all indicated that the items set out as particulars in the complaints and as raised by the complainants were indeed violations of the Act. In the alternative, if the Board were satisfied the employer had discharged its onus under section 24(5) of the Act, counsel relied upon subsection 24(7) and asked that the Board order reinstatement of all three complainants. All three had been sincerely and deeply concerned about what they felt were safety violations at the work site, they acted out of a concern for the welfare of all employees, including themselves, and in the case of Fawcett and Vautour, prior disciplinary warnings they had received were completely unre­lated to the circumstances causing termination. In those circumstances, counsel suggested termina­tion was too severe a penalty.

III. The Decision

20Section 24 of the Occupational Health and Safety Act reads 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) litipose 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.

(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.

(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 89 of the Labour Relations Act, except subsection (5), applies with all necessary modifications, as if such section, except subsection (5), is enacted in and forms part of this act.

(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsec­tion (2), sections 102, 103, 106, 108 and 109 of the Labour Relations Act apply, with all neces­sary modifications.

(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.

(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a com­plaint by a crown employee that the Crown has contravened subsection (1).

(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 disciplined 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 substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

(8) Notwithstanding subsection (2), a person who is subject to a rule or code of discipline under the Police Act shall have his complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.

21The issue we must decide is why the complainants were discharged. This turns on our finding of the facts, based on our assessment of the evidence and whether we believe the com­pany's claim that it discharged them because they wouldn't perform their work, or the complainants' claim that they were performing their work and never took company time for their pursuits, and were discharged because they raised safety matters. Put in terms of the statutory language, were the complainants discharged because they acted in compliance with the Act or because they sought its enforcement? It is important to understand that what is protected by the Act is the right of employees not to be threatened or disciplined because of their acting in compliance with the Act (pr regulations etc.) or seeking its enforcement. An employee might engage in conduct warranting 4iscipline, and in those circumstances an employer can impose discipline, provided the discipline is not motivated even in part by a concern that the employee was acting in compliance with or seek­ing to enforce the Act. Discipline levied for that reason is proscribed by section 24(1). Whether a breach is found will depend on whether the Board concludes that the disciplinary response was even partially prompted because the employee was seeking to exercise his or her rights under the Act. In this respect, the Board's inquiry under section 24 of the this Act parallels the nature of the inquiry under section 89 of the Labour Relations Act. As the Board noted in Westinghouse Canada Limited, [1980] OLRB Rep. April 577:

44. We now turn to the unfair labour practice provisions underlying this complaint and to a con­sideration of the law as it relates to the degree of anti union motive necessary to establish such violations of the Act. For the purpose of our analysis it is useful to distinguish between decisions affecting individual employees and major business decisions having potentially broader impact. In dealing with the treatment of individual employees this Board has consistently held that if only one of the reasons for an employer's actions against an employee (discharge, layoff, trans­fer, demotion, etc.) is related to union activity the action is in contravention of the Act. Given the reverse legal onus mandated by section 79 (4a) the Board has held that to find there has been no violation of the Act in these kinds of cases it must be satisfied that the employer's actions were not in any way motivated by anti-union sentiment. The Board summarized this approach and the effect of the statutory reversal of the legal burden of proof in The Barrie Examiner case, [1975] OLRB Rep. Oct. 745 as follows:

the appearance of a legitimate reason for discharge does not exonerate the employ­er, if it can be established that there also existed an illegitimate reason for the employer's conduct.

This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both ele­ments must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

(See also Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 294 and Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299.) Judicial support for this application of the law is found in Regina v. Bushnell Communications et al (1973), 1 O.R. (2d) 422 wherein the Ontario High Court overturned a lower court decision which had dismissed a complaint under section 110(3) of the Canada Labour Code, which is identical in all material respects to section 58 of The Labour Relations Act, on the grounds that membership in a union was not established as the 'principal reason' for the termination of employment. The High Court held:

In considering an enactment devoid of the words 'sole reason' or 'for the reason only' applied to the act of dismissal and resting only on the word 'because', the Court must take an expanded view of its application. If the evidence satisfies it beyond a reason­able doubt that membership in a trade union was present to the mind of the employer in his decision to dismiss, either as a main reason or one incidental to it, or as one of many reasons regardless of priority, s. 110(3) of the Canada Labour Code has been transgressed.

The decision of the High Court was upheld on appeal by the Court of Appeal (1974 CanLII 559 (ON CA), 4 OR. (2d) 288) and was cited with approval by the Federal Court in Sheehan and Upper Lakes Shipping Limited et al (1977), 1977 CanLII 3060 (FCA), 81 D.L.R. (3d) 208. In this jurisdiction, therefore, the Board, with judicial support, applies a 'taint theory' in dealing with alleged unlawful treatment of individual employees. If an employer's actions impact against individual employees and the motives underlying the employ­er's action are in any way tainted by an anti-union animus the employer is in violation of the Act.

The same sorts of considerations and analysis apply in our view to alleged violations of Section 24 of the Occupational Health and Safety Act. If the respondent has convinced us that no part of the reason for the discharges was concern over the complainants' seeking enforcement of the Act or acting in compliance with it, then the respondent will not have violated section 24 of the Act.

22We must decide whether we believe that the respondent's reasons for discipline were as it has stated: not because of the complainants' safety activities, their acting in compliance with the Act, or their seeking to enforce the Act, but only because they were not doing their regular work or because they were disrupting the work of other employees without the right to do so. We have noted above that the complainants do not claim they were authorized or entitled to cease doing their regular work and walk through other areas of the plant to seek out purported health and safety problems, or to gather other employees together to discuss health and safety at times when the employees and complainants were otherwise to have been working. They argue simply that they only pursued such activities on their own time. We have also noted above that the complain­ants all tried to mislead the Board in testifying they did not take any work time for their activities.

We have found that they did. Notwithstanding their lack of candour, we must still be satisfied that the respondent did not discharge them because they were seeking the Act's enforcement or acting in compliance with it.

23Whether or not the safety problems raised by the complainants would in fact be viola­tions of the Act is not a question for this Board to determine. In our view, we have no jurisdiction 4nder this statute except as is described in and circumscribed by section 24. Subsections 1 and 2 of that section restrict our consideration to whether workers have been disciplined, threatened, intimidated, or coerced because they have acted in compliance with the Act or regulations or because they have sought their enforcement. The authority to determine whether a particular machine, condition, or environment is in fact in a state that is unsafe and violates the Act has been given to others. Regardless of whether a working condition is in fact unsafe, we must ask ourselves whether a worker was disciplined (or threatened, etc.) because he or she sought the enforcement of or because he or she acted in compliance with the Act. In that respect, we are satisfied that each com­plainant believed he was seeking the enforcement of the Act or its regulations in his raising of many of the complaints. They were not raising these matters only to harass the respondent. That many of the conditions complained of might not be contraventions of the Act or regulations does not mean the complainants were not seeking the enforcement of the Act or regulations. They are only required to have bona fide sought its enforcement, not to have raised what are ultimately held to be violations.

24Employees must be able to seek enforcement without fear of reprisals and with full pro­tection for their efforts in this regard. Indeed, section 17 of the Act imposes a duty upon employ­ees to seek enforcement of the Act and to report contraventions to the employer. Section 17 reads as follows:

(1) A worker shall,

(a) work in compliance with the provisions of this Act and the regulations;

(b) use or wear the equipment, protective devices or clothing that his employer requires to be used or worn;

(c) report to his employer or supervisor the absence of or defect in any equip­ment or protective device of which he is aware and which may endanger himself or another worker;

(d) report to his employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he knows; and

(e) where so prescribed, have, at the expense of the employer, such medical examinations, tests or x-rays, at such time or times and at such place or

places as prescribed.

(2) No worker shall,

(a) remove or make ineffective any protective device required by the regu­lations or by his employer, without providing an adequate temporary pro­tective device and when the need for removing or making ineffective the protective device has ceased, the protective device shall be replaced imme­diately;

(b) use or operate any equipment, machine, device or thing or work in a man­ner that may endanger himself or any other worker; or

(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

Methods of seeking enforcement could not therefore be limited to the right of an employee to ref­use to perform hazardous work (under section 23) and the right of the designated representative to perform inspections and point out problems (under section 7). The Act both requires employees to seek its enforcement and protects their rights to do so; it does not prescribe the only ways in which employees can exercise those rights. It was clear, both from the complainants' and respondent's perspective, that the complainants were seeking to enforce what they honestly perceived to be the requirements of the Act. Accordingly, we are satisfied the complainants sought the enforcement of the Act, and they can rely on section 24. We do not propose to comment upon whether, nor do we suggest that, the working conditions were in fact in violation of any of the provisions of the Act or its regulations.

25Similarly, we need not determine whether the respondent would have been ultimately responsible for correcting all the safety matters complained of by the complainants. The respon­dent argues that many of the alleged infractions involved work areas or working conditions were not matters over which it had any control, nor were they tools, work areas, or working conditions which any of the respondent's employees was required to use. (We note that the complainants con­ceded this in their testimony.) For example, the respondent argues that any concern with respect to welding masks and the safety of the welding procedures was the concern of another contractor on site, whose employees were engaged in welding, and not the concern of the respondent whose employees did not participate in the welding that was the subject of the complaints. The complain­ants, as noted above, were seeking the enforcement of this Act and its regulations, and we do not read section 24(1) as affording protection to workers only when they complain about alleged safety violations for which their own employer is responsible. In the instant case, the complainants were required to work in a setting where various contractors and their employees were sharing the same workplace. In such circumstances it would be artificial and would undercut the purpose and protec­tions afforded by the Act to restrict employees to complaining only about unsafe work conditions which are the responsibility of their own employer, when at the same time their working environ­ment might involve exposure to dangerous conditions under the control of employers other than their own. Employees must feel free to and be able to raise safety concerns with respect to any working condition. We read section 17 as requiring such employee response and section 24(1) as protecting employees when they do raise these concerns.

26The Act did not authorize the complainants to wander from their jobs and investigate safety matters in other parts of the site. Section 7 of the Act specifically deals with circumstances in which employees may pursue health and safety matters to the neglect of their regular employment duties:

7. -(1) Where the number of workers at a project regularly exceeds twenty, the constructor shall cause the workers to select at least one health and safety representative from among the workers on the project who do not exercise managerial functions.

(2) Where no committee has been established under section 8, or where the number of workers at a project does not regularly exceed twenty, the Minister may, by order in writing, require a constructor or an employer to cause the selection of one or more health and safety representa­tives for a work place or a part or parts thereof from among the workers employed at the work place or in the part or parts thereof who do not exercise managerial functions, and may provide in the order for the qualifications of such representative or representatives.

(3) The Minister may from time to time give such directions as the Minister considers advisable concerning the carrying out of the functions of a health and safety representative.

(4) In exercising the power conferred by subsection (2), the Minister shall consider the matters set out in subsection 8(4).

(5) The selection of a health and safety representative shall be made by those workers who do not exercise managerial functions and who will be represented by the health and safety repre­sentative in the work place, or the part or parts thereof, as the case may be or, where there is a trade union or a trade unions representing such workers, by the trade union or trade unions.

(6) A health and safety representative may inspect the physical condition of the work place or the part or parts thereof for which he has been selected, as the case may be, not more often than once a month or at such intervals as a Director may direct, and it is the duty of the employer and the workers to afford the health and safety representative such information and assistance as may be required for the purpose of carrying out the inspection.

(7) A health and safety representative has power to identify situations that may be a source of danger or hazard to workers and to make recommendations or report his findings thereon to the employer, the workers and the trade union or trade unions representing the workers.

(8) Where a person is killed or critically injured at a work place from any cause, the health and safety representative may, subject to subsection 25(2), inspect the place where the accident occurred and any machine, device or thing, and shall report his findings in writing to a Director.

(9) A health and safety representative is entitled to take such time from his work as is necessary to carry out his duties under subsections (6) and (8) and the time so spent shall be deemed to be work time for which he shall be paid by his employer at his regular or premium rate as may be proper.

(10) A health and safety representative or representatives of like nature appointed or selected under the provisions of a collective agreement or other agreement or arrangement between the constructor or the employer and the workers, has, in addition to his functions and powers under the provisions of the collective agreement or other agreement or arrangement the functions and powers conferred upon a health and safety representative by subsections (6), (7) and (8).

27Subsection 7(9) ensures that work time can be taken to perform health and safety duties, but it is only the properly chosen representative (in this case Gemus) who is specifically authorized by law to do so. Other employees, while free to exercise their rights under section 23 to refuse work they believe to be unsafe, and under section 17 to report contraventions of the Act (amongst other matters) to the employer, are not authorized by the statute to act as health and safety representatives and exercise the powers of or perform the functions of a health and safety representative. It cannot be said, in the circumstances, that the complainants were acting in com­pliance with the Act when they wandered to other areas of the work site during their regular work t4rne. They were not the designated representative who might well be acting in compliance with the Act by such wanderings or investigations. The Act deals with a wide range of matters and contains a spectrum of rights, obligations, and methods of seeking enforcement. While that spectrum does not delineate all the ways in which employees can seek enforcement (for example, see subsections 17(1)(d)), the Act does not give each employee the right to cease performing his or her work and act as health and safety representative, or to cease working at his or her discretion even though the current work assignment presents no safety problem (cf. section 23). None of the complainants was specifically authorized by the Act to stop doing their assigned work and to travel around the site, to either discuss health and safety matters with other employees or to investigate what they believed to be safety violations. Their activity in this regard was not sanctioned per se by the stat­ute. However, even where they seek enforcement to the detriment of their regular work, employ­ees are protected if the employer disciplines them because they were seeking such enforcement.

28As noted above, we accept the evidence of Zyvitski over that of Marion as we did not find Marion a credible witness. Marion had been wandering from his job in order to inspect the work site for safety infractions, and had been asked by Zyvitski to cease taking company time to do so. He had also been given a written warning to the same effect. Despite the warning, he indicated he intended to continue to act as he had in the past. The warning he received was not grieved. Marion was not a "health and safety representative", selected pursuant to section 7 of the Act and was therefore not entitled to take time from his work in order to investigate what he perceived to be safety problems within the work site, yet he did take time from his work for this purpose, repeatedly, and in the face of the warning he received to not do so in the future. He also in effect advised the employer he would continue to wander around the site to the detriment of his regular work.

29A discharge might seem somewhat harsh for an employee in Marion's circumstances. We have therefore considered carefully whether his discharge must have been motivated by rea­sons other than were given at the time and other than were recited at the hearing, and particularly, whether the discharge was motivated even in part because of the health and safety activities Mar­ion continued to pursue. The Board is well aware that the reasons given for discipline may conceal actual motivation, and assessing the circumstances may lead to an inference that improper reasons partially formed the basis for the employer's response. Because the behaviour in question revolved around attempts to seek enforcement of the Act, and because the employer knew that Marion was pursuing health and safety matters during his wandering, we have scrutinized the circumstances particularly closely, to ensure no breach of the Act occurred.

30It assessing the circumstances, however, we must keep in mind that the job site was a construction project, of approximately 9 months duration. In construction, employers must be able to count on skilled tradesmen performing their jobs efficiently and effectively. In this respect we adopt the comments expressed by the Board in Canadian Engineering and Contracting Co. Ltd., [1983] OLRB Rep. July 1017:

11. We accept, of course, that the employer-employee relationship in the construction industry is not a close one, and is not comparable with relationships that arise between employers and their employees in an industrial setting. Employment relationships are transitory and, as in the present case, workers will be referred from the hiring hall and employed for short periods of time without the kind of pre-selection which would be undertaken by an industrial employer before engaging workers who could conceivably be employed on a long-term basis. Accordingly, we accept the need for a certain amount of realism and arbitral restraint in determining what constitutes just cause for discharge in a construction context. However, we are not persuaded that either the arbitral jurisprudence or the language of the collective agreement before us requires us to apply considerations that are totally different from those applied by arbitrators to employers who use the same language in collective agreements in other industries. In particular, the Board is of the view that the employer must at least warn a grievor that his job is in jeopardy prior to discharging him for "unsatisfactory performance" - which is what we found has hap­pened in the circumstances of this case. In Re Harold R. Stark Limited et al. (1972), 1972 CanLII 2050 (ON LA), 1 L.A.C. (2d) 405 (Egan), the majority of the Board observed (at pages 406-407):

It was argued by the company that because of the special nature of the construction industry, different considerations ought to apply with respect to the discharge of employees to those obtaining in industry in general. In this regard, it is of some signif­icance to note that the grievors are not in the position of long-term employees whose previously acceptable work performance has deteriorated. The grievors were assigned to the company by the union under the terms of the collective agreement. That is, of course, an arrangement quite common in the construction industry. In consequence of this practice, the grievors were taken on without any pre-hiring or qualifying inter­view such as might enable the company to make a pre-employment assessment. They entered into the employment of the company purporting to be competent tradesmen and were not subject to any probationary period of evaluation by the company. Therefore, there is no question of any knowledge, on the part of the company, as to the proficiency of the grievors at the time of their engagement as tradesmen qualified in the classifications which they hold.

We are not wholly persuaded, however, that totally different considerations from those applied to industry in general are applicable to discharge cases in the construc­tion industry. In this connection, our attention was drawn to Re United Ass'n of Jour­neymen & Apprentices of the Plumbing and Pipefitting Industry, Local 221, and Fraser-Brace Engineering Co. Ltd. (1968), 1968 CanLII 1197 (CA LA), 19 L.A. C. 258 (Christie). This case involved the question of the discharge of an employee for 'loafing' on a construction site. The company, in that case, argued that different considerations applied to dis­charge in the construction industry. The board, in its decision in that case, stated that it was not unimpressed by the argument that rather different considerations may apply in the determination of what constitutes just cause for dismissal in the construc­tion industry.

The grievor in the Fraser-Brace case, supra, appears to have been a chronic time waster, but received no admonitions from the company with respect to his conduct prior to his discharge. The Board went on to say, however, that "It is unnecessary to decide what differences it makes that we are dealing with the construction industry. Even if the requirements of 'cause' and just cause were considerably lower than they are in general industrial situations 'cause' for dismissal was not established here." The board went on to find that the discharge was unjust because of the absence of a warn­ing and reinstated the grievor.

See also Proweld Company Limited, [19821 OLRB Rep. March 437, and White and Greer Company Limited, Board File No. 1404-81-M, decision dated November 23, 1981, unreported, in which this Board confirmed that prior to the discharge of an employee in the construction industry for lack of production or inadequate quality, the employee is entitled at least to a warn­ing that the employer is dissatisfied.

12. We accept these propositions. Notwithstanding the rather special environment of the con­struction industry which would arguably warrant a lesser standard of 'just cause' for discharge, it is our view that before an employee can be justly discharged for inadequate work performance he must at least be warned that his performance is inadequate and that if it does not improve his continued employment would be jeopardized. In the absence of such warning so that an employee clearly understands the standard of performance expected of him, it is our opinion that a discharge would be unjust.

Health and safety and the rights under the Act must still be protected; we mean only that the infer­ence we might draw from the employer moving directly from a written warning to a discharge (in the case of Marion) or to discharges without prior written warnings (Vautour and Fawcett) must be assessed in this construction context.

32. Given the construction nature of the project, given all the circumstances, and given that we found Zyvitski credible and his explanation borne out by the circumstances, we are satisfied that the respondent terminated Marion solely because he had ignored the prior warnings, was con­tinuing to take time from his work in order to wander around the company site, and in addition because of its view that he had violated the no camera rule of Algoma Steel Corporation. No part of the reason for Marion's termination was company concern over his seeking the enforcement of the Act or over the safety problems he was raising, or his persistence in raising them. It was his persistence in not doing his job in the face of a clear warning that led to discipline. Accordingly, the company did not violate section 24 in its discharge of Marion.

33. We turn now to consider, with respect to Marion, whether the penalty of discharge was appropriate in the circumstances and whether we ought to substitute such other penalty as we might consider "just and reasonable in all the circumstances". Subsection 24(7) of the Act reads as follows:

"(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 disciplined 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 substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances."

There was no suggestion that the collective agreement contained a specific penalty for any of the infractions in question.

34. As noted, counsel for the respondent contended that subsection 24(7) only applies if the Board finds a contravention of subsection 24(1). We do not find that submission to be persuasive. We interpret subsection (7) as giving the Board jurisdiction, in circumstances when the Board finds that the employer has not violated subsection 24(1) of the Act, to substitute such other penalty as to the Board seems just and reasonable in all the circumstances. In this respect we follow the approach taken by the Board in numerous prior cases (see for example Baltimore Aircoil of Canada, [1982] OLRB Rep. March 327; Inco Metals Company, [1982] OLRB Rep. Sept. 1315; Toronto Transit Commission (Wilfred George Love, Complainant), [1985] OLRB Rep. Feb. 344; Camco Inc., [1985] OLRB Rep. Oct. 1431; The Corporation of the City of Ottawa, [1986] ORLB Rep. June 798). If subsection 24(7) only applied if subsection 24(1) had been contravened, it would be redundant, as the Board already has such power in these circumstances, by virtue of subsection 24(3), which makes all of the subsections of section 89 of the Labour Relations Act, except subsec­tion (5), applicable with all necessary modifications to a complaint filed under subsection 24(2). Thus, the Board's power to remedy the contravention of subsection 24(1) by, for example, substi­tuting a lesser penalty, would come from subsection 89(4) of the Labour Relations Act as incorpo­rated into section 24 by subsection 24(3).

35. As well, the wording of subsection 24(7) on its face gives the Board the jurisdiction to substitute such penalty as the Board considers just and reasonable, even though the Board has not found the employer to have violated subsection 24(1) and even though the Board "determines that a worker has been discharged or otherwise been disciplined by an employer for cause". In circum­stances such as those in the instant case, where the Board has determined that the employer has not breached the Act in its discharge of an employee, it is both sensible and in accord with the spe­cific wording of subsection 7 for the Board to then inquire whether the employer's disciplinary response was nevertheless appropriate in all the circumstances. Under subsection 24(2), a worker under a collective agreement has a choice of adjudicative forum where a contravention by an employer of subsection 24(1) is alleged, and the worker may elect to have the matter dealt with either by arbitration or by filing a complaint with this Board. The legislature has set up a mecha­nism under section 24 whereby the worker can have both the occupational health and safety allega­tion and the merits of the discipline dealt with in one forum, either final and binding arbitration or through a complaint to the Ontario Labour Relations Board. The scheme of section 24, the impact of subsection 24(3), and the language used in subsections 24(2) and 24(7), support the view that the legislature intended that the adjudicative forum chosen by the worker would deal with both the alleged breach of section 24(1), and, in the event the adjudicative tribunal found the employer had not breached the Act, with the issue of whether the specific penalty imposed by the employer for cause was just and reasonable in all the circumstances. No valid labour relations purpose would be served by reading section 24(7) to any other effect.

36. Returning to the circumstances leading to Marion's termination, Marion had received a written warning advising him that the employer considered it improper for him to take work time to pursue health and safety concerns. That warning was not grieved. Despite that warning, Marion advised Zyvitski he intended to continue taking regular work time to do safety inspections around other parts of the site. Marion gave no indication that the written warning had had any effect upon him, nor any indication he was likely to correct his behaviour in the future. Though we accept that Marion was sincerely motivated in his activities, we note there were other methods to deal with safety concerns he had about the work place, including requesting that the official health and safety representative, Gemus, deal with them. Although Marion was clearly unhappy with Gemus' performance as representative, Gemus was the health and safety representative who had been selected pursuant to section 7 of the Act, and was entitled to remain in that position until duly replaced. There was no credible evidence that Gemus was not effectively performing his safety duties. Whatever alternatives might have been available to Marion to ensure a safe work place, it was not open to him to continue to ignore the employer's concern that he perform the job for which he had been hired. While it might seem abrupt for an employer to move directly from a writ­ten warning to a discharge, this construction project was of limited duration, approximately nine months, and the respondent required that a particular job be done in a relatively short period. In all these circumstances, and particularly given that Marion continued in the face of a written warn­ing issued for the same problem and announced that he intended to so continue, we do not substi­tute any penalty for that termination.

37. We turn lastly to the complaints with respect to Fawcett and Vautour, which we pro­pose to deal with together as their circumstances are similar. Although both Vautour and Fawcett had raised on numerous occasions during safety meetings their concerns about the health and safety conditions in the work place, so too had other employees. There was no evidence (nor sug­gestion) that Vautour or Fawcett ever raised a safety concern with management other than at a safety meeting, nor that they were more persistent or vocal in the safety meetings than three or four other employees. Despite employees raising those matters regularly during such meetings, and over a several month period, none of them, including Vautour and Fawcett, were disciplined or in any way treated improperly or threatened. Discipline was only meted out to Vautour and Fawcett when Zyvitski observed them in areas of the site away from their work areas, talking to fellow employees during working time, subsequent to Zyvitski's termination of Marion for not per­forming his work and subsequent to Zyvitski having an official of their own union speak to them about the company's concerns. As noted earlier, we are satisfied that Vautour and Fawcett did neglect their work in order to wander around the site, and the discussions with other employees did cause disruptions to the work force and the work day.

38. As in Marion's case, a discharge might seem unduly severe an employer response to Fawcett's and Vautour's behaviour and might lead to an inference that ulterior motives guided the employer's actions. On balance however, we remain satisfied that the respondent's disciplinary response was not motivated in whole or in part by any concern over Vautour or Fawcett acting in compliance with the Act (or regulations etc.) or seeking to enforce the Act or its regulations, but only by concern over their not performing their work and disrupting others from their work. We accordingly have found the respondent did not breach the Act. Zyvitski had discharged Marion the previous week, after discovering his written warning to Marion had been futile. Vautour and Faw­cett knew about Marion's discharge and the reasons for it. In the face of that discharge~ Zyvitski reasonably believed he confronted two fellow employees similarly persisting in neglecting their work and disrupting the work of other employees. He sent a site foreman, an executive member of their union, to speak to them and try to get them to stop, but Zyvitski was advised the effort was futile. At that point, Zyvitski felt he was losing control of the work place and that a strong discipli­nary response was necessary in order to convey in concrete terms to employees that they were not to stop performing their regular work. While discharges in similar circumstances in an industrial setting might well lead us to infer improper motivation, we do not draw that inference here, given the construction work site, our finding that Zyvitski was a credible witness, and our acceptance of his evidence.

39. Although the respondent did not breach the Act, we next consider whether the dis­charges were just and reasonable in all the circumstances, pursuant to our authority under section 24(7). Unlike Marion, the prior written warnings received by Fawcett and Vautour were for com­pletely unrelated matters, though issued within the previous two months. Both these complainants were sincerely motivated and were not raising health and safety concerns, either at the workplace or before the Board, as an excuse to refuse to do their regular work. The company itself had viewed a written warning as an appropriate response for a first offence for similar behaviour in that it had issued a written warning to Marion for such misconduct. After Marion was discharged, Faw­cett and Vautour would or should have realized that serious repercussions might attend behaviour like Marion's. Nevertheless, we are not satisfied that their behaviour was so similar to Marion's that they ought to have known that discharges would result. They had not clearly been warned that their wanderings and disruptions might lead to termination, nor had they indicated after being warned (as Marion had) that they would continue despite the warning. They might well have responded to a disciplinary response short of discharge, even in light of the ineffectual warning issued to Marion. Evidence was not led to establish how much work time was lost by Vautour and Fawcett not doing their work and by their disrupting the work of fellow employees, nor did we have sufficient evidence on which to conclude how many employees stopped working because of their activity. It does not appear, however, that the disruptions they caused were excessive. Again, the construction context underscores the employer's need for effective disciplinary treatment. We view the discharges of Fawcett and Vautour as unduly harsh and unreasonable in the circum­stances, and we substitute as a more just and reasonable disciplinary response a 5 day suspension for each of them. Such a suspension would have given a strong message that the respondent was insisting its employees do their jobs. At the same time, given the relatively minor disruptions of which we had evidence and the lack of clear warning, it would not have unduly penalized Fawcett and Vautour in order to make an example of them to others.

40. As the construction project in question has been completed, and there is no employ­ment to which Fawcett and Vautour can be reinstated, we accordingly direct that each of them be compensated by the employer as if they had only been suspended for S working days, subject to the applicable principles of mitigation. We remain seized should the parties have any difficulty in implementing this remedial relief.