[1988] OLRB Rep. September 981
0103-88-OH; 0104-88-OH Martin Bracey, Complainant v. Anil Bhatia, Respondent; Martin Bracey, Complainant v. Scarborough General Hospital, Respondent
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.
APPEARANCES: Martin Bracey and Patrick Sheppard for the complainant; Tim Sargeant for the respondents.
DECISION OF THE BOARD; September 16, 1988
1This is a complaint under section 24 of the Occupational Health and Safety Act ("OHSA") against the two respondents, the complainant's supervisor and employer respectively, claiming reprisals for exercising his rights under the Occupational Health and Safety Act. This decision deals only with the employer's preliminary objection that the matter had already been dealt with by arbitration and that therefore the Labour Relations Board has no jurisdiction to hear the matter. The complainant takes the position that the arbitration did not deal with his health and safety complaint, or section 24 of the OHSA. The motion was argued on the basis of documents, affidavits and stated facts. No oral evidence was heard.
2Mr. Bracey was hired by the hospital as a respiratory therapist on October 13, 1985. He was fired on March 5, 1986 and grieved the termination on March 7, 1986. The discharge letter, dated March 5, 1986 states that the discharge was made "based on your employment record and continued unacceptable behaviour and actions in the respiratory services department". The grievance stated that he had been unjustly dismissed from his job at the Scarborough General Hospital and requested reinstatement with full redress. Following an unsuccessful grievance meeting, the discharge grievance was advanced to arbitration by the grievor's union, together with a grievance concerning a prior disciplinary letter, and was heard by a board of arbitration on nine days of hearing starting on November 24, 1986 and ending on November 27, 1987. After hearing the employer's case and the grievor's evidence-in-chief, the board of arbitration suspended the hearing and issued an award without completing the hearing. This followed its decision that it was impossible to proceed because of the grievor's attacks on the integrity of the board. The board decided that the grievor's allegation that the hospital was responsible for his impairment of health was not before them and that the sole issue was just cause. The board of arbitration allowed the grievance on the disciplinary letter in part and found that the discharge was without just cause but did not order reinstatement because of its finding that the employment relationship with the hospital had been "shattered irreparably". The board of arbitration added "apart from any consideration of his health (and we make no finding in that regard), it is inconceivable that he could work in the hospital again". Three weeks of damages were awarded instead because of the short time that the grievor had worked for the hospital. This money was paid by the hospital.
3The worker had invoked section 23 of the Occupational Health and Safety Act prior to his discharge based on his conviction that his asthmatic condition was incompatible with exposure to glutaraldehyde in his workplace. His affidavit indicates that the employer then ordered him back to work. After he was discharged he asked his union to file a health and safety complaint, but his union declined to do so at that time. At the local union level he was informed that the employer was aware of the complaint and was investigating the facts surrounding his discharge. Mr. Bracey went to the Ministry of Labour's Occupational Health and Safety Branch and spoke to an officer, and "made three specific complaints": 1) that the work environment at the hospital was unsafe and that it violated a specific agreement made to him upon hiring that he would not be exposed to glutaraldehyde; 2) that the exposure might be affecting other workers; and 3) that he had been terminated for making an occupational health and safety complaint and claiming Workers' Compensation benefits. He was then informed that he had to take the complaint through the grievance procedure provided for in his collective agreements since he was covered by a collective agreement. The concerns that the grievor later related to the Ministry of Health also reflected his concern for the effect of the chemical on other workers and patients.
4After the arbitration award was released and received by the grievor in early January 1988, he again went to the Occupational Health and Safety Branch and discussed with them, in the words of his affidavit, "the fact that I had had the possibility of elections excluded by being told that I must use the avenue of the grievance procedures since I belonged to a bargaining unit. They were emphatic in pointing out to me that whoever had told me that had misinformed me, that it was then and remained my right now to make such a complaint."
5The earlier contacts with the Occupational Health and Safety Branch had resulted in an inspection report dated April 9, 1986 from the Industrial Health & Safety Branch which lists as the purpose "to investigate Mr. Martin Bracey's claim of unjustified termination". In the memo to the employer which is attached, the purpose is stated as "the investigation of Mr. Martin Bracey's claim of a possible exposure to glutaraldehyde which was reported to the Ministry of Labour on March 12, 1986". As the air quality reading was within the threshold limit identified by the Occupational Health and Safety Division, the report concluded that no contravention of the Occupational Health and Safety Act was made out. However, the Occupational Health and Safety Division's field visit report dated May 7, 1986 indicated that, although the airborne exposures were below dangerous levels, in their view the exposure could have aggravated Mr. Bracey's asthma and therefore exposure was to be avoided.
6It is clear from the submissions of counsel for Mr. Bracey and the affidavit of Mr. Bracey that he considered the occupational health and safety complaint and the discharge grievance to be separate and distinct. He had sent a memo to his supervisor on February 24, 1986 outlining his concerns about his deteriorating health, which he intended to be a health and safety complaint. He did not wish to give up his occupational health and safety complaint by going to arbitration on the grievance. Further, the affidavits from Mr. Bracey and his union representatives indicate that neither the grievance procedure nor the arbitration dealt with Mr. Bracey's ongoing concerns regarding occupational health and safety. However, it appears that little, if any, distinction was made by the grievor between his allegations of deterioration of his health and being ordered to work in an area he considered unsafe, elements which alone would not be within the Board's jurisdiction, and his complaint that the employer disciplined him because of these factors which can fall within the Board's jurisdiction under section 24(2).
7Complainant's counsel argues that the board of arbitration itself did not accept that it had any jurisdiction to deal with the occupational health and safety complaint and that the board of arbitration made it clear that it was fashioning a remedy without consideration of the health and safety complaint. Counsel for Mr. Bracey acknowledged that the health and safety matters were part of the arbitration to the extent that reinstatement without the elements of removal from exposure to glutaraldehyde would cause the grievor to be ill and therefore would not have been what he was seeking. However, he argues that at no time did the union intend to make a grievance of the occupational health and safety complaint and that therefore the union should not have been held to have elected either. His overriding concern is that the occupational health and safety issues per se have never been dealt with.
8Mr. Bracey's counsel stresses that there was no meeting about the occupational health and safety complaint with the hospital at all, only a termination meeting. Counsel argued strenuously that neither in fact nor in law had there been an election in that neither the union nor the complainant had intended to elect arbitration over the route at the Labour Relations Board for the occupational health and safety complaint.
9Hospital counsel argues that the election is found by operation of law in going to arbitration and that the preliminary objection should also be upheld because the complaint was filed two years after the event. He argues that the matter has been dealt with in that the arbitrator has come to the conclusion that there will be no reinstatement but has granted compensation which has been cashed by the grievor without objection from the union or the grievor.
10Hospital counsel maintains that the only reason Mr. Bracey is trying to enforce his rights at the Ontario Labour Relations Board is that he was unsuccessful before the Board of Arbitration. He stresses that the remedies at the Board are much the same as those at arbitration and that the Board has dealt with the remedies available to Mr. Bracey.
11Counsel for the complainant submitted that Mr. Bracey should not be precluded from having his OHSA complaint dealt with by the Board unless we find that he had intentionally elected to forego his remedies at the Labour Board. Further, he stressed that the complaint against Mr. Bhatia, a professional colleague as well as a supervisor, was separate from the complaint against the hospital and should be dealt with on its merits regardless of what we found on the complaint against the hospital, and that the parties in the grievance and the OHSA complaint against Mr. Bhatia were not the same. He suggested that there was no impediment to the complaint going forward against Mr. Bhatia for a separate and severable remedy which would not include reinstatement, but that if one went forward he suggested that they should both go forward. Counsel for the employer's response to this argument was that the remedies are not personal to the supervisor but are against the employer, citing section 24(7) of the OHSA in particular.
12Sections 24(1) and (2) of the Occupational Health and Safety Act provide as follows:
24.-(1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.
(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.
13The Board has dealt with the question of election under section 24 of the Occupational Health and Safety Act in a number of cases. In Reed Limited, [1982] OLRB Rep. Jan. 1, the question considered was the manner in which an employee represented by a trade union may bring a complaint under the predecessor to the current section 24 which was section 9 of the Employee's Health and Safety Act 1976. Section 9(2) of that Act was substantially the same as section 24(2) of the current Act providing:
"Where an employee complains that an employer has contravened subsection (1), the employee 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 mutatis mutandis to the complaint".
In that case individual grievances were lodged with the employer and processed to the first stage of the grievance procedure after the occupational health and safety complaint had been filed, but the grievances had not been withdrawn at the time of the Board's hearing. The respondent employer argued that the employees had elected arbitration and must pursue that route exclusively. The Board decided that the employee had not yet elected arbitration because the matter was still in the grievance procedure. At paragraph 13 it held as follows:
The Board, therefore, should not foreclose an employee from bringing a complaint before it simply because that employee has had his union take the matter through the grievance procedure. Once it is established, however, that the employee has authorized the union to take the matter beyond the grievance procedure to arbitration, the Board will not deal with any complaint relating to that matter. Whether the employee has chosen arbitration prior to or following the actual filing of the complaint with the Board, the Board will treat the employee as having elected arbitration, and as being bound by that election.
14In the Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283, the Board dealt with a situation where a discipline grievance had been processed up to the point of scheduling a hearing with a board of arbitration. The hearing had not taken place at the point at which the parties appeared before the Board on a related OHSA complaint. The complainant's counsel argued that the arbitration would deal with the matter of whether there had been an improper layoff, but that the Board could and should deal with the OHSA issues itself. In declining to sever the issues in this way, the Board wrote at paragraph 10:
The "matter" referred to in section 24(2) is the alleged violation of 24(1), namely, that an employer acted to penalize a worker, as set out in sub (a) to sub (d), because the worker complied with or sought enforcement of the OHSA. That issue of improper (or unjust) discipline is the "matter" to be heard at arbitration or before the Board. While the respondent asserts that the undisputed fact that the complainant is no longer an active employee is as a result of layoff, there is no doubt that section 24(1) of the OHSA is integral to the grievance should the grievance be adjudicated in an arbitral forum. The grievance form itself refers to "termination without just cause" rather than improper layoff or some such language. Section 24(1) affords workers a right of protection from penalties for invoking the OHSA; that right is enforceable under the legislation either at arbitration or before the Board.
The Board suggested that a complainant might be allowed in some circumstances to come before the Board where he or she had objected to the union's taking the matter to arbitration or where a grievance had been settled without the complainant's consent. However, in The Great Atlantic & Pacific Company of Canada, Limited, [1987] OLRB Rep. May 714, where a complainant had agreed to the settlement of a grievance to the effect that he was reinstated with seniority but without compensation and two months later came to the Board with a OHSA complaint trying to recover the lost earnings, the Board again said that the just cause and OHSA matters could not be severed. The Board wrote at paragraph 7:
When a worker feels that he or she has been affected by a contravention under section 24(1) of the O.H.S.A., subsection (2) requires the worker at some point to make an election of the forum in which he or she will seek a remedy. At some point, a worker must choose either to proceed before the Board or to proceed under the arbitration provisions of the relevant collective agreement. See, The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283, and the cases cited therein. It is not necessary for us to define with precision at what point the worker must make an election. But having elected one forum and having obtained a determination of the issue in that forum, a worker cannot then attempt to obtain a remedy in the other forum. Implicit in section 24(2) and the choice of procedures set out therein is the recognition of the undesirability of having the same issue litigated in two quite different forums. We agree with the comments of the Board in The Municipality of Metropolitan Toronto, supra, at paragraph 10, where the Board stated that the O.H.S.A. issue raised by a grievance is not severable in the sense that one can take the just cause aspect of a discharge to arbitration and the O.H.S.A. aspect to the Board. The issue of whether the discipline was proper is one issue and with respect to that issue a worker must at some point choose in which of the two forums he or she will seek a remedy.
For a similar approach, with a different result, see Inco Metals Company, [1982] OLRB Rep. May 681. The fact that the union had withdrawn the matter from arbitration allowed the complainant to go ahead with the OHSA complaint.
15The nub of the problem on the facts before us is whether or not "the matter" has been dealt with by final and binding settlement by arbitration. The task is made somewhat difficult by the fact that the grievance, as is usual, is not particularized in the way the complaint made to the Board is. However, it is clear from all the material before us that it is the complainant's theory of the case both before the Board and at arbitration that he was disciplined and dismissed unfairly because of his activities in trying to protect his health and safety under the OHSA. Section 24(1) provides that no reprisals shall be taken against a worker because he or she has acted in compliance with or sought enforcement of the OHSA. The election in subsection 24(2) is as to how a matter of the allegation of a contravention of subsection (1) will be dealt with. The substance of a contravention of subsection (1) is that a person was disciplined, penalized or intimidated because of the exercise of rights under the OHSA. In our case the worker alleges that he was disciplined, discharged and unfairly dealt with because he was seeking compliance with the OHSA. That is "the matter" of the complaint. We then must ask whether the worker had that matter dealt with by final and binding arbitration or not? The answer is clearly, "yes". The essence of the worker's complaint, embodied in his grievance, which was taken to arbitration without objection, was that he was unjustly dealt with because of his activities under the OHSA. There was no evidence that the worker did not intend to have his grievance dealt with at arbitration. The fact that he did not at any time explicitly state that he was choosing the arbitration route over the OHSA route does not change the fact that he has had the matter dealt with by final and binding arbitration. The wording of the statute requires no explicit intention to forego the right to come to the Board or expression thereof; it merely says "the worker may have the matter dealt with ...". Having that matter dealt with involves adjudication concerning the employer's motivation for discharge, which was done by the arbitration board. The fact that the arbitration in this case was discontinued in mid-stream undoubtedly leads the worker to feel that the matter has not been dealt with. However, once the grievance which is relating to the matter set out in section 24(1) has been taken through the arbitration process, whether or not the grievor is satisfied with the way in which it was dealt with, it cannot be said that it was not dealt with. Otherwise, the election in section 24(2) could come to depend on how an arbitrator or the Board framed its decision. We note that whenever there is a defended claim of discharge for reprisals under the OHSA, an employer who is defending the case will give other, non-reprisal reasons for the discharge. Due to the reverse onus obligation on the employer, the focus of the adjudication, whether before the Board or under the collective agreement, will be, at least initially, the reasons given by the employer and whether they constitute unjust discipline. Almost universally these will be non-OHSA reasons and will involve allegations of fault on the part of the employee in some way. It will not be surprising then for the matter to look in some cases as if the OHSA issues are not being dealt with since they are not pivotal to the employer's allegations against the employee.
16As to the complaint against Mr. Bhatia, the allegations of reprisal in the complaint filed with the Board are substantially the same. There are no incidents complained of against Mr. Bhatia which are not also complained of against the hospital. They all relate to the sequence of events immediately preceding and ending in the worker's discharge. Also, the allegations against the hospital relate to actions by Mr. Bhatia as the worker's supervisor. We cannot find that it has a status any different from the complaint against the hospital for the purposes of section 24(2).
17The jurisdiction of the Board under section 24 is not broad. It is not a jurisdiction to enforce the OHSA or safe working conditions for workers in general. It is limited to protecting them from reprisals for seeking their rights under the OHSA. The election in section 24(2) is quite separate from the enforcement provisions under Part VIII of the OHSA which provide an enforcement route beginning with an order from an inspector and moving on to an appeal to the Director and the offences and penalties sections set out in Part IX of the OHSA. The legislature has given to the Labour Board only the right to adjudicate the question of employer reprisals as an alternative to arbitration under a collective agreement. We have found that the worker has had this allegation of reprisal dealt with by arbitration under the collective agreement and we are therefore without jurisdiction to hear the complaint. The more general allegations concerning health and safety set out in paragraph 3 above, would not, alone, have been within the Board's jurisdiction, whether or not the complainant had had the matter of his allegations of reprisal dealt with by a board of arbitration.
18As we have decided this matter under section 24 of the Occupational Health and Safety Act, it is not necessary to deal with the issue of delay raised by hospital counsel.