Douglas Lloyd v. The Crown in Right of Ontario (Ministry of Community and Social Services)

[1988] OLRB Rep. January 50

1949-86-OH Douglas Lloyd, Complainant, v. The Crown in Right of Ontario (Ministry of Community and Social Services), Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Maureen Farson, Doug Lloyd and Laura Trachuk for the complainant; David Costen, Ed Maksimowski and Frank Szabadka for the respondent.

DECISION OF KEN PETRYSHEN AND BOARD MEMBER J. A. RONSON; January 26, 1988

1. The name of the respondent is amended to read: "The Crown in Right of Ontario (Min­istry of Community and Social Services)".

2. The complainant alleges that he has been dealt with by the respondent contrary to the provisions of section 24(1) of the Occupational Health and Safety Act (hereinafter referred to as "the Act" and "the OHSA").

3. The events giving rise to this complaint began on July 2,1986. During the evening hours of that day, Mr. Doug Lloyd, who is employed as a youth services officer at the Brookside Youth Centre ("Brookside"), was directed during his shift by his supervisor and subsequently by the superintendent to report to work at another location at the facility. Mr. Lloyd refused to report for work at the other location. As a result of this refusal, he was ordered to leave the work place. Rather than leave, he elected to complete his shift. Lloyd's refusal to comply with the respondent's directions caused the respondent to issue two letters to Lloyd concerning the incident. The first let­ter, dated July 3, 1986, essentially advised Lloyd that future conduct of a similar nature would result in disciplinary action, not excluding dismissal. In the second letter, which was dated July 31, 1986, the respondent reprimanded Lloyd for his conduct of July 2, 1986. Lloyd claims that by directing him to leave the facility on July 2, 1986 without payment for those hours remaining in his shift and in issuing the letters of July 2 and July 31, l986, the respondent has contravened section 24(1) of the Act.

4. Brookside is designated under the Young Offenders Act as a secured custody facility. The parties are agreed that Brookside is a facility within the meaning of section 23(1)(c) of the OHSA. The residents of Brookside are housed in cottage-type units. Carr House has 13 beds and each of the remaining units have 15 beds. The residents are between the ages of 13 and 18. Brook-side accommodates residents who have been convicted of offences for which an adult would receive a sentence of over 5 years. In addition, persons a court has deemed to be a danger to society can be sent to Brookside. Brookside also operates an Observation and Detention (0 & D) Centre which houses individuals who are awaiting trial or sentencing and, on occasion, persons who have created problems at other facilities.

5. Prior to May 23, 1986, the female residents who had been sentenced were placed in Johnson House while Carr House was used as the 0 & D Centre. Subsequent to May 23, 1986, the female residents occupied the north end of Carr House and the south end of Carr House was uti­lized as the 0 & D Centre. This change was made to allow for a more efficient use of space and staff. From 7:00 a.m. until 11:00 p.m., a door located in the middle of Carr House was locked sep­arating the female residents in north Carr from the 0 & D residents in south Carr. During these hours, north Carr and south Carr were treated as two separate units. The door was padlocked open at 11:00 p.m. transforming Carr House into one unit until 7:00 a.m. North Carr has seven beds and south Carr has 6 beds.

6. The front line staff, commonly referred to as youth services officers, normally work twelve hour shifts. The two primary shifts are from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m. Some individuals work floating shifts from 9:00 a.m. to 9:00 p.m. and from 11:00 a.m. to 11:00 p.m. Between 7:00 a.m. and 11:00 p.m., when the door located in the middle of Carr House is locked, the north and south sides of Carr House would each have two youth services officers as of May 23, 1986. From May 23 to June 23, 1986, there were three youth services officers in Carr House between 11:00 p.m. and 7:00 a.m. Beginning on June 23, 1986, the respondent reduced the number of youth services officers on duty in Carr House to two between the hours of 11:00 p.m. and 7:00 a.m. As of June 23, 1986, one of the youth services officers in Carr House would com­plete his or her shift at 11:00 p.m. while another youth services officer would be sent to another house, leaving two youth services officers on duty in Carr House during the period of time when it operated as one unit.

7. There is little dispute between the parties with respect to the events which occurred dur­ing the evening of July 2,1986. On that day, the complainant began working in north Carr on the 7:00 p.m. to 7:00 a.m. shift. At 11:00 p.m. he was scheduled to go to Martin House where he would work until the end of his shift. Lloyd's shift on July 2nd was his first shift after a two-week absence. It was during his absence that the respondent reduced the complement from 3 to 2 in Carr House during the period from 11:00 p.m. to 7:00 a.m. Between 9:30 and 10:00 p.m., G. Douglas, a shift supervisor, approached Lloyd and advised him that he would have to go to Martin House at 11:00 p.m. Lloyd testified, and we accept his evidence in this regard, that it was only when Douglas approached him that he became aware of the change concerning the reduction in staff. Lloyd told Douglas that he did not think it was a good idea to staff the house with only two employees after 11:00 p.m. Douglas indicated that if Lloyd did not do as he was told, he would have to call some­one else in for Martin House. Lloyd responded by saying that that was okay since he would have to stay at Carr House.

8. A short time later, Douglas phoned Lloyd and asked him again if he was prepared to go to Martin House at 11:00 p.m. Lloyd's response remained the same. Douglas advised him that if he did not go to Martin House he would be sent home. Lloyd said he could not go home and leave only two employees in Carr House. Douglas advised Lloyd that Mr. Szabadka, the superintendent, would be coming in soon.

9. Shortly before 11:00 p.m., Szabadka and Douglas spoke to Lloyd at Carr House. Sza­badka directed Lloyd to go to Martin House. Lloyd gave him the same response he had given ear­lier to Douglas. Douglas, who had a copy of the Act with him, directed Lloyd to section 23 and told Lloyd that he could not refuse to work. Lloyd said he was not refusing to work and explained that he was only refusing to work in a way that would jeopardize his peers in accordance with sec­tion 17 of the Act. Szabadka indicated to Lloyd that he was making a mistake and suggested to him that there were other ways to deal with the situation such a filing a grievance or by raising the mat­ter with the Employee Relations Committee. Lloyd replied that such avenues required a long time and could not solve the situation he was faced with at that moment. Szabadka told Lloyd that he would have to go home. Lloyd refused. When Szabadka advised Lloyd that he would not be paid if he remained, Lloyd indicated again that he would not go home and leave the other two employees in Carr House in jeopardy. On that note the discussion came to an end.

10. Lloyd has been employed at Brookside for approximately twenty years. During this time he has played an active role within his union, the Ontario Public Service Employees Union ("OPSEU"). He has been a member of the OPSEU executive board, chairman of the union nego­tiating committee, and at the time of the complaint, he was president of his local union. In his evi­dence, Lloyd explained why he felt it was necessary to remain at Carr House during his July 2 shift. We do not propose to set out all of his evidence on this point in detail. Suffice it to say that in his view the residents in 0 & D posed a greater risk to staff than other residents. In particular, he noted that at the relevant time one resident in 0 & D had been charged with murder, another with sexual assault, and a female in north Carr had been sentenced on a manslaughter charge. In Lloyd's view more staff was required in 0 & D than in the other houses because of the greater risk created by such a population. Lloyd was asked whether he realized he was placing another staff member in greater jeopardy by not going to Martin House. Lloyd explained that he did not believe this was the case since he understood from Douglas that another youth services officer would be called in to ensure that Martin House had double coverage. If the respondent had not indicated it was prepared to take this step, Lloyd testified that he would have had to make a difficult decision. He testified that he would have gone to Martin House if no one else had been called in but felt it was fortunate he did not have to make that decision. Lloyd completed his shift in Carr House. He did not leave Carr House until approximately 7:20 a.m. when he was replaced by the youth ser­vices officer who was scheduled to work the 7:00 a.m. shift.

11. Before leaving Carr House on the evening of July 2, 1986, Szabadka verified that the youth services officers were in their proper locations and that the residents were asleep. He also ascertained that the situation was relatively quiet that night. He had no indication from other staff members that there was a problem in Carr House. If a problem did develop, it would be handled in the normal course which could include calling in additional staff. Szabadka did not agree with the proposition that employees were subject to greater risks when working in the 0 & D Centre. In cross-examination, Szabadka testified that he was satisfied that Lloyd's conduct was motivated by a genuine health and safety concern for his fellow employees.

12. Counsel for the complainant called a considerable amount of evidence, including a per­son who counsel argued was an expert, to prove that in fact there was a greater risk to employees when they worked in the 0 & D Centre as opposed to some other part of the facility. Given the manner in which we have disposed of this case, it was unnecessary for us to reach a conclusion on this point.

13. On July 3, 1986, Lloyd received the following letter which he viewed as a letter of disci­pline for insubordination:

On the evening of July 2nd, 1986 you were scheduled to work from 1900 hrs. to 0700 hrs. on July 3rd, 1986.

At approximately 2100 hrs. you were working in the north part of Carr House. Mr. Garth Douglas, Shift Supervisor, advised you that at 2300 hrs. you would move to Martin House for the remainder of your shift, from 2300 hrs. to 0700 hrs. to act as the second staff in Martin House. At this point you refused to comply with the work assignment in Martin House.

On June 23, 1986, Janet Fisher, Unit Supervisor, stated in the Communication Logs of South Carr and North Carr that at 2300 hrs. the South Carr 0 & D Unit and the North Carr Custody

Unit would become one residential House by opening the connecting hall door and that hence­forth Carr House would be staffed by two persons from 2300 hrs. to 0700 hrs.

Your decision on the evening of July 2nd, 1986, not to work in Martin House as of 2300 hrs. is insubordination. As a result of your refusal to comply with Mr. Dougias' order, you were advised by Mr. Douglas, after consultation with me, that you could either report to Martin House or go home, thus removing you from duty for the remainder of your shift. Since you con­tinued to refuse to go to Martin House as instructed, you were relieved from your duties as of 2300 hrs. for insubordination and thus not subject to remuneration for the remainder of the scheduled shift. This was confirmed with you, by myself, at approximately 2330 hrs. in Carr House. You chose to remain in Carr House for the remainder of the shift, without assigned duties.

Mr. Lloyd, you are scheduled to work from 1900 hrs. on July 3rd, 1986 to 0700 hrs. on July 4th, 1986. Should you elect to repeat your actions of July 2nd, 1986, you shall again be relieved of your duties without pay and be subject to further disciplinary action, not excluding dismissal.

I regret that you have left me no option in this regard and I assure you that I am acting without prejudice in stating my position to you at this time.

14. After a pre-disciplinary meeting on July 28, 1986, Szabadka issued Lloyd a reprimand letter in the following terms:

On Monday, July 28th, 1986, you attended a pre-disciplinary meeting at Brookside School. The meeting was convened as a result of your refusal to comply with a work location assignment in Martin House on the evening of July 2nd, 1986.

Your categorical refusal to work in Martin House from 2300 hours to 0700 hours as ordered by the Shift Supervisor, necessitated that you be relieved of your duties for the remainder of your scheduled shift.

Your long history of competent performance as a Supervisor of Juveniles, combined with the fact that your Union representative admitted, on your behalf, that you had erred by your actions on July 2nd, 1986, had led me to conclude that this letter of reprimand is sufficient disciplinary action.

As a responsible staff member, I'm sure you can appreciate how inappropriate, disruptive, and unacceptable your actions were. Such behaviour cannot and will not be tolerated at Brookside. I would not expect from you, further incidents of this nature, but should they re-occur, I would have no option but to consider more severe disciplinary measures, not excluding dismissal.

15. The provisions of the Act relevant to this matter are as follows: 17.(1) A worker shall

(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

(2) No worker shall,

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

23.-(1) This section does not apply to,

(a) a person employed in, or who is a member of a police force, to which The Police Act applies;

(b) a full-time fire fighter as defined in The Fire Departments Act; or

(c) a person employed in the operation of a correctional institution or facility, training school or centre, detention and observation home, or other similar institution, facility, school or home.

(2) Where circumstances are such that the life, health or safety of another person or the public may be in imminent jeopardy, this section does not apply to a person employed in the operation of any of the following institutions, facilities or services whether granted aid out of moneys appropriated by the Legislature or not and whether operated for private gain or not:

1. A hospital, sanitarium, nursing home, home for the aged, psychiatric insti­tution, mental health or mental retardation centre or a rehabilitation facili­ty.

2. A residential group home or other facility for persons with behavioural or emotional problems or a physical, mental or development handicap.

3. An ambulance service or a first aid clinic or station.

4. A laboratory operated by the Crown or a laboratory licensed under The Public Health Act.

5. Any laundry, food service, power plant or technical service or facility belonging to, or used in conjunction with, any institution, facility or service referred to in paragraphs 1 to 4.

(3) A worker may refuse to work or to 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 condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such con­travention is likely to endanger himself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circum­stances of his refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of 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.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of his refusal to work or do particular work continues to be likely to endanger himself or another worker;

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

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such con­travention continues to be likely to endanger himself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

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 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 there under or has sought the enforcement of this Act or the regulations.

(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.

16. Counsel for the Ministry argued that Lloyd was disciplined because of a refusal to com­ply with a reasonable direction and not because of any attempt on his part to enforce the Act or to act in compliance with the Act. He submitted that Lloyd's conduct amounts to insubordination and that Lloyd cannot rely on the legislative right to refuse unsafe work given the provision of section 23(1)(c) of the Act. In counsel's view, section 17 of the Act does not create an independent right to refuse work. This was not a case, counsel argued, which should cause the Board to exercise its dis­cretion under section 24(7) of the Act since the penalty given to Lloyd was quite lenient.

17. Counsel for Lloyd argued that it was his compliance with the Act and his efforts to seek enforcement of the Act that prompted the management at Brookside to discipline him. Counsel argued that Lloyd was not refusing work within the meaning of section 23 of the Act and that his conduct should not be viewed as insubordinate. In her submission, subsections 17(1)(d) and 17(2)(b) create obligations for employees and that by acting in the way he did, Lloyd attempted to meet his obligations under section 17 of the Act. He made an honest attempt to address a health and safety concern and he should not be disciplined for his actions. Counsel submitted alternative positions with regard to what standard the Board should adopt when determining whether a "worker has acted in compliance with the Act or has sought the enforcement of the Act". Firstly, counsel argued that it is sufficient if the worker was acting in good faith with respect to a health and safety matter. Alternatively, counsel argued that it was enough if the worker reasonably believed he was acting in compliance with the Act. Counsel went on to submit that even if the worker is required to be right when assessing whether he or she is complying with the Act~ on the evidence before the Board Lloyd should succeed in this complaint. Finally, counsel urged us to exercise our discretion under section 24(7) to substitute another penalty.

18. Section 24(1) of the Act prohibits an employer or a person acting on behalf of an employer from responding in the ways detailed in (a) to (d) because a worker has acted in compli­ance with the Act or the regulations. When determining whether a worker has acted in compliance with the Act or with the regulations, it is not sufficient that a worker believes in good faith or rea­sonably believes he is complying with the Act or the regulations. The Board must be satisfied that a worker has, in fact, complied with the Act or the regulations and that such compliance prompted a prohibited response. Whether a worker has complied with the Act or the regulations depends on an interpretation of the relevant provisions relied upon and the facts in each case. It is not uncom­mon for complaints under section 24 to allege that an improper employer response occurred as a result of a worker's compliance with section 23 of the Act. In determining whether there has been a refusal within the meaning of section 23, it is necessary to determine the worker's belief at the first stage of the refusal and the reasonableness of the belief if the worker continues to refuse after an investigation has been conducted. It is not section 24 of the Act which makes such an inquiry necessary but rather the precise requirements contained within section 23 of the Act.

19. Section 24 also prohibits an employer or a person acting on behalf of an employer from responding in the ways detailed in "a" to "d" because the worker has sought the enforcement of the Act or the regulations. A worker may seek such enforcement by communicating with the employer, by contacting an inspector, by making a complaint under the Act, or by a number of other means. If the worker is seeking enforcement of the Act an employer cannot legally disci­pline, etc. the worker, even if the concern of the worker is not found ultimately to be a contraven­tion of the Act. Conduct which seeks enforcement of the Act is protected activity in order to encourage workers to raise health and safety concerns with their employer and others and to thereby reduce the likelihood of injury in the workplace (see, Commonwealth Construction Company, [1987] OLRB Rep. July 961).

20. The Board is satisfied that the employer in this case did not act the way it did towards Lloyd because Lloyd sought the enforcement of the Act or because Lloyd complied with section 17(1)(d). It is arguable that when Lloyd advised certain management officials of the employer on July 2,1986 that the staffing of Carr House was not adequate he sought the enforcement of the Act or attempted to meet his obligations under section 17(1)(d). We are satisfied that the employer's response in this instance was because of Lloyd's refusal to go to Martin House as directed and not because he attempted to enforce the Act or comply with section 17(1)(d). If Lloyd had simply con­veyed his concerns to management and went to Martin House at 11:00 p.m. as ordered, he would not have been disciplined. The issue we are left with then is whether or not Lloyd's refusal to go to Martin House on July 2, 1986, is conduct which amounts to compliance with section 17(2)(b) of the Act.

21. In Adelaide Building Services, [1980] OLRB Rep. July 933, the Board decided that a refusal to work as provided under section 23 of the Act is not the only worker activity which is pro­tected from employer reprisal under section 24 of the Act. The Board stated the following at para­graph 5:

That provision does not, on its face, limit its protection or application to situations where a worker has refused to perform work. The Act itself speaks to matters other than refusal, and, among other things, imposes a variety of obligations upon constructors, employers, supervisors, workers, owners and suppliers (see Para. III of the Act). A worker who is trying to comply with the provisions of this Act by getting his employer or supervisor to fulfill the obligations set out in sections 14, 15 and 16 of the Act, is not less entitled to the protection of section 24(1) than is the person who refuses to perform work. Therefore, the Board finds that the complaint on its face does allege matters which may constitute a violation of section 24(1), insofar as they are capable of being included in sections 14, 15, 16 and 17, and that it has jurisdiction to hear the matter.

22. In Baltimore Aircoil of Canada, [1982] OLRB Rep. March 327, the Board interpreted section 17 of the Act and in so doing, analyzed the relationship between section 17 and section 23. The following comments of the Board are worth reiterating:

23. Although the protection afforded an employee under section 24 extends beyond a refusal to work, it is necessary to consider the extent to which the Act permits employee insubordination. Under section 23 of the Act an employee is expressly entitled to refuse to do whatever work he has been ordered to do where the preconditions set out in the section have been satisfied. Nowhere else in the Act can there be found an express entitlement to engage in insubordina­tion. Under section 17(2)(b) a worker is under a statutory obligation not to work in a manner that may endanger himself or another worker. This section, considered in isolation, may be read as creating an implied entitlement to engage in insubordination to the extent that a worker, regardless of the instructions of his employer, is required to work in a manner that does not endanger himself. However, when section 17(2) is read in the context of the Act as a whole, we are unable to conclude that it creates an independent entitlement to refuse to obey the instruc­tions of the employer beyond that contained in section 23 of the Act. The duty of an employee under section 17(2) is not new. It existed under section 27 of the Industry Safety Act, 1971 SO. 1971 c. 43. It was never viewed as conferring a right to refuse to work. That right was enacted for the specific purpose and to be applied in the specific circumstances described in section 23 of The Occupational Health and Safety Act. Where an employee is subject to a written or verbal instruction and he has reason to believe that by complying with the instruction in the carrying out of his work he is likely to endanger himself, he is entitled to refuse to do the work in the manner directed.

24. The distinction between section 17(2) and section 23 is critical to the scheme of the Act. A refusal to work under section 23 triggers the carefully constructed mechanism established under that section for resolving situations which are perceived by an employee as posing a danger to his health and safety. If an employee simply disregards the instructions of his employer and takes it upon himself to establish his own procedure for doing the work, the initial problem may not be identified as posing a threat to his health and safety or that of any other employee subject to the same instruction. Furthermore, the resources which the Act contemplates be brought to bear (employer investigation and follow-up and, if necessary, the involvement of an inspector) may not be, to the potential detriment of workers. Where a worker is acting within the bounds of his own discretion, section 17(2)(b) obligates him not to work or operate equipment in a man­ner that may endanger himself or a fellow worker. However, where a worker is acting under a specific instruction, oral or written, and he has reason to believe that by complying with that instruction he may endanger himself or a fellow worker, he complies with section 17(2)(b), not by unilaterally substituting his own work method for that laid down by his employer, but rather, by availing himself of the right under section 23 to refuse to do work which may endanger him­self or another worker. The administration of the Act in this way enhances worker safety by promoting immediate disclosure, discussion and inspection rather than resort to ad hoc solutions and the potential for hazardous situations to go undetected....

25. In her submissions, counsel for Lloyd attempted to persuade the Board that the approach adopted by the Board in Baltimore Aircoil of Canada, supra, has no application to the circumstances of this case. We disagree. In essence, the Board in Baltimore Aircoil of Canada, supra, concludes that the only right in the Act to refuse work is contained in section 23 of the Act. A worker cannot refuse work on the basis that some other provision of the Act creates a right to disobey the employer. Section 17(2)(b), in particular, does not entitle a worker to refuse an instruction. That provision places an obligation on a worker not to use or operate equipment, etc., and not to work in a manner that may endanger himself or any other worker insofar as a worker's conduct in these respects is entirely within his or her discretion. This interpretation of section 17 and the analysis of the relationship between section 23 and the other provisions of the Act, partic­ularly section 17, contained in Baltimore Aircoil of Canada, supra, are very persuasive. Although the facts in Baltimore Aircoil of Canada, supra, are distinguishable since the worker in that case

could rely on section 23 of the Act whereas Lloyd is not able to do so, we are satisfied that the Board's interpretation of section 17 is a correct one.

24. Lloyd was instructed to go and perform his normal duties at Martin House at 11:00 p.m. on July 2, 1986. He refused to comply with this instruction on a number of occasions. He was directed to go home and he refused to do that as well. The basis for his refusal was a concern for the health and safety of his fellow workers at Carr House. In our view, his refusal to comply with those instructions from his employer amounted to insubordination. Since the decision as to whether or not to go to Martin House was not a decision within his own discretion, it cannot be said that by refusing to go to Martin House he was meeting his obligations under section 17(2)(b) of the Act. Similarly, in this situation it could not be said that he was in breach of a duty under sec­tion 17(2)(b) if he had gone to Martin House as directed. Therefore, we are satisfied that Lloyd's refusal to go to Martin House on July 2,1986 does not constitute compliance with section 17(2)(b) of the Act.

25. Section 23(1)(c) of the Act specifically provides that persons who work at institutions such as Brookside do not have the right to refuse work which might endanger their health and safety or that of their fellow workers. Subsection 1 also provides that such a right does not exist for the police or fire fighters. The reasons section 23 does not apply to these workers is obvious. Risk­ing one's health and safety is one of the primary requirements of these occupations and if one were to allow individuals in these occupations to refuse work which involved a risk of injury, the impor­tant functions which they are obliged to perform would remain unfulfilled. To interpret sections 17 and 24 of the Act in the way Lloyd suggests is to effectively read subsection 23(1) out of the Act. It is inconceivable that the Legislature would explicitly exclude workers such as those employed at Brookside from the right to refuse work for reasons of health and safety in section 23 but then indi­rectly give them such a right under section 17 of the Act. The issue in this case essentially comes down to who is to determine staffing levels at Brookside. For workers at institutions such as Brookside, the message contained in section 23(1)(c) and the general scheme of the Act is that the resolution of staffing issues which raise health and safety concerns must be resolved in ways which do not involve refusals to work under the OHSA.

26. Although policy reasons dictate that the employees at Brookside can not refuse work for health and safety reasons within the meaning of section 23 of the OHSA, employees in Lloyd's position have been denied an important privilege. In a section 23(1) situation, a worker who is dis­ciplined for refusing an employer's order which requires the worker to contravene the Act, does not have the protection of section 24(1) of the Act. However, this does not necessarily mean that no remedy is available. Subsection 24(7) provides that where a worker is discharged or otherwise disciplined for cause and no specific penalty exists, the Board may substitute a penalty which seems just and reasonable in the circumstances. This subsection gives the Board a very broad discretion. In reviewing all of the circumstances of a particular case, the Board undoubtedly would give some weight, depending on the penalty imposed, to the fact that a complainant was disciplined for refus­ing an order directing that person to act contrary to the Act or to the fact that a complainant was motivated by a health and safety concern and was acting in good faith. It was not suggested by either counsel that subsection 24(7) did not apply to the circumstances of this case. We note that the complainant is a person who is covered by the terms of a collective agreement (see, Commonwealth Construction Company, sup ra).

27. The Board is satisfied in the circumstances of this case that it would not be appropriate to exercise its discretion to substitute a different penalty. Although Lloyd was acting in good faith, insubordination is considered to be misconduct of the sort which warrants a significant disciplinary response. Lloyd refused to comply with directions from both his immediate supervisor and the superintendent. He refused to go home when directed to do so and he was advised that if he did not go home he would not be paid for the remainder of his shift. Lloyd's refusal to go to Martin House caused the employer the inconvenience of having to call in an additional youth services offi­cer. The employer's disciplinary response was not inappropriate. In essence, Lloyd received a reprimand and was not paid for the remainder of his July 2, 1986 shift. This mild response was clearly a result of recognition on the part of the employer of Lloyd's seniority, his discipline free record and the fact that he was acting in good faith and for a health and safety reason when he refused to go to Martin House.

28. Accordingly, this complaint is dismissed.

DECISION OF BOARD MEMBER D. A. PATTERSON;

1. I dissent from the majority decision of the Board.

2. The crux of this case is whether the complainant's exclusion under section 23(1)(c) of the Occupational Health and Safety Act, which states,

23(1) This section does not apply to,

(c) a person employed in the operation of a correctional institution or facility, training school or centre, detention and observation home, or other similar institution, facility, school or home.

gives the respondent the right to compel the complainant to violate section 17(1)(d) and 17(2)(b) of the Act.

17(1) A worker shall,

(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

17(2) No worker shall,

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

3. The facts in this case are not in dispute between the parties so the Board is not faced with having to decide on the credibility of any witness over another. The issue in this case is the proper interpretation of section 17 of the Occupational Health and Safety Act, and the majority's failure to exercise its discretion under section 24 of the Act.

4. I believe the respondent's supervisor, Mr. Douglas and his superintendent, Mr. Szabad­ka, handled the incident incorrectly whereas the complainant, Mr. Lloyd remained consistent in dealing with the dilemma he faced the evening of July 2, 1986. Mr. Lloyd has been a front line cor­rections officer at Brookside for twenty years. He has been a responsible dedicated employee and union activist which was openly acknowledged by the respondent. The respondent gave evidence that they believed Mr. Lloyd was genuinely and legitimately concerned over the health and safety of his fellow employees. Mr. Lloyd also gave evidence of his concerns. On the evening of July 2, 1986, Mr. Lloyd was torn between his responsibility to Brookside and his obligation under the Occupational Health and Safety Act. In Carr house that evening, housed in the 0 & D lockup, was one inmate charged with murder, one with sexual assault and one with manslaughter. There was no opportunity to resolve his concerns because the staffing changes were implemented in his absence and also Lloyd knew nothing of the changes until he was approached by Mr. Douglas, his supervisor, to leave Carr house to go to Martin House from 11:00 p.m. to 7:00 a.m. After their dis­cussion, Mr. Douglas informed Lloyd he would have to call in another officer, which he did prior to 11:00 p.m., which was a satisfactory solution to Mr. Lloyd. The respondent asked Mr. Lloyd what he would have done if Douglas had not called in another officer that evening and Lloyd's response was direct, "it would have been a tough decision but I would have gone to Martin House".

5. This legislation imposes rights and obligations on both employers and employees. There are sections of the Act which are not applicable to certain employees, for example, those engaged in household work, farming, education, or those covered by other Acts, such as, the Police Act and the Fire Department Act. Mr. Lloyd is covered by the Occupational Health and Safety Act, he is only excluded from the provisions of section 23 of the Act. By excluding workers like Mr. Lloyd from section 23, the Legislature did not exclude these same workers from the remaining sections of the Act. There are penalties and fines which may be levied against employers and employees for breaches and violations of the Act. In my view, the intent of the legislation was to afford workers health and safety rights and procedures in which the workers' concerns could be raised and enforced without fears of reprisals or discipline for enforcing the Act. In the event an employee was disciplined or penalized in some way by the employer because the employee sought enforce­ment of the Act~ the employee could appeal the discipline or penalty to the Ontario Labour Rela­tions Board. The Board was granted discretionary powers under section 24(7) of the Act to amend or substitute any discipline or penalty:

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 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.

6. This case has to be determined under section 24 and section 17 of the Act. Consequent­ly, the cases cited by the majority namely Commonwealth Construction Company, [1987] OLRB Rep. July 961 or Adelaide Building Services, [1980] OLRB Rep. July 933, or Baltimore Aircoil of Canada, [1982] OLRB Rep. Mar. 327, are distinguishable from the facts in this case, and are of no assistance here. In all three cited cases the Board points out the worker is under a statutory obliga­tion not to work in a manner that may endanger himself or another worker. The difficulty in this case is that Mr. Lloyd is excluded from the provisions of section 23 whereas the workers referred to in the three above-cited cases all had protection under section 23 and to the remedies therein. However, Mr. Lloyd's situation is one in which he was not refusing to work in the sense contem­plated by section 23 of the Act but rather he faced a dilemma as to where and how to work without violating section 17(2)(b) of the Act.

7. If an employee exercises any right under the Act in good faith, or exercises his obliga­tions under section 17 of the Act, his actions were intended to be safeguarded against reprisals or penalty under section 24 of the Act. The Act cannot be circumvented by characterizing his actions as insubordinate. I would have found the respondent in breach of section 24 of the Act, and exer­cised the Board's discretion under section 24(7) of the Act. We are not talking of a short-term employee here or an employee attempting to shirk his responsibilities. Mr. Lloyd remained on the job, continued to perform his functions as a corrections officer at Brookside in Carr house until 7:20 a.m. the following morning, in fact twenty minutes beyond his normal working hours. These do not appear to me to be the actions of an unreasonable insubordinate employee. Nowhere in the Act is the term insubordination mentioned. The majority decision is to grant the employer the unfettered right to compel an employee to knowingly violate the Act. The actions of the complain­ant were for no ulterior motive, but rather his legitimate concern for the health and safety of his fellow employees. This legislation surely could not have intended this result.

8. In conclusion, I do not believe it unreasonable to expect that workers such as Mr. Lloyd be afforded any less protection against reprisals than anyone else covered by the Act. I find the interpretation of the majority to be an unreasonable condemnation of the complainant's dilemma and subsequent resolve. This decision could be interpreted as condoning any disciplinary action taken by an employer against any employee excluded from section 23 who expresses a sincere health and safety concern. This Act's intent was to place health and safety in the forefront. I do not believe in 1988 we are prepared to subject correction officers, officers of the crown, courts or the public safety at more risk or to more penalty than the rest of society who all enjoy the protection, benefit and responsibilities under the Act.