Philip A. Heath v. Butler Metal Products, 1988 CanLII 3743

[1988] OLRB Rep. October 1003

3277-87-OH Philip A. Heath, Complainant v. Butler Metal Products, Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. N. Fraser and P. V. Grasso.

APPEARANCES: Philip A. Heath for the complainant; John P. Sanderson and Malcolm McKillop for the respondent.

DECISION OF THE BOARD; October 14, 1988

1. Philip Heath, the complainant, alleges that he has been dealt with by the respondent contrary to section 24(1) of the Occupational Health and Safely Act (hereinafter referred to as "the Act" and "the OHSA"). Heath, who was employed by Butler Metal Products ("Butler") as a supervisor, is seeking compensation for the period January 29, 1988 to May 2, 1988. Since Heath was able to obtain employment with another firm, he did not request an order from the Board directing Butler to reinstate him.

2. Butler called M. Renner, E. Frey, D. Shrubsall, J. Dienesh and R. Pederson to give evidence. Heath testified in support of the complaint. In making its finding of fact, the Board con­sidered all of the oral and documentary evidence.

3. Butler is a manufacturing company that essentially serves the automobile industry. As a part of its manufacturing process, Butler utilizes robots. The size of its plant in Cambridge is approximately 300,000 sq. ft. and it employs approximately 800 persons. Local 1986 of the CAW represents the production employees.

4. After leaving a supervisory position at another company, Heath started to work for Butler in 1985 as a press operator. After three weeks, he was promoted to a supervisory position. Since 1985, Heath's supervisory responsibilities increased and he was deployed by the company on different shifts. In September 1986, Heath was given the position of Robotics Supervisor and in January 1987 he was promoted to the position of Robotics Supervisor-Coordinator. During 1987, Heath attended two robotic training courses which focused on a number of matters, including safety. In mid-1987, Heath assumed the responsibilities of P. McGeoch., the Robotics Superinten­dent, in McGeoch's absence. These responsibilities included the supervision and training of other supervisors. The evidence discloses that, except for the incident referred to below, Butler manage­ment considered Heath to be a model supervisor. Heath was particularly conscious of safety issues. This was consistent with Butler policy which recognized that safety came first, quality second and production third.

5. On January 29, 1988, Heath left Butler's premises shortly after his shift started because Butler authorized the performance of certain work in his department which he felt created an unsafe situation. In order to appreciate what occurred on that day, one must review the events of the week ending January 29 and the events of the following week.

6. On January 111988, Heath returned to the plant after a Christmas vacation. McGeoch advised Heath on that day that production was still behind in the robotic areas and that, while Heath was absent on vacation, a Ministry of Labour inspector issued an order concerning mainte­nance personnel performing maintenance work in the robotic cells while production was ongoing. The order McGeoch referred to in this discussion was placed before us. Among other things, the order directs Butler to repair a gate in the G.M.10 area. During their discussion, McGeoch did not make any reference to the repair of gates.

7. During the relevant period, Heath was the supervisor for department 91 which is also referred to as the front body area. Department 89, the G.M. 10 area and department 90, the red yoke area, are supervised by D. Shrubsall. Each of these departments contain robots and each of the robots are enclosed by a four foot high fence with a gate. These enclosures, which are com­monly referred to as cells, are not identical but have many common features. Common to all the robotic cells is the Butler safety procedure for lockouts. The robot control panel is located outside the cell and contains a control key. The gate into the cell can be locked when closed and is unlocked by using the control key. The lockout procedure requires a person to remove the control key from the control panel, which shuts down the operation of the robot, and to use the control key to open the gate to the cell. The lockout procedure is designed to ensure that persons, such as maintenance personnel, do not enter the cell to perform work while the robot is operating and to ensure that persons do not inadvertently enter the cell. It was the failure to follow the lockout pro­cedure, among other things, which caused the inspector to issue the order referred to above in early January 1988.

8. Beginning at 4:00 p.m. on January 25, 1988, Butler held a meeting with its supervisors in order to explain the responsibilities of employees, the company arid supervisors under the OHSA. E. Frey, Manager of Safety and Employee Development, advised the supervisors in par­ticular about their responsibilities under the Act. Section 16 of the OHSA is the provision which sets out the duties of a supervisor.

9. As a result of the inspector's order, Butler decided to alter some gates on some of the

robotic cells. These gates were attached to the fence and forklifts striking the fence posts could cause an alignment problem preventing the gates from closing properly. Butler decided to attach the gates to posts which were not connected to the fence. The gate would be attached to the new posts located just inside the fence. Butler engaged the services of a contractor to perform the work. The job of putting in the new posts just inside the existing fence and hanging the gate would require the contractor's employees to work a few feet inside the cell. The supervisors in the affected departments were not advised in advance that certain gates in their areas were to be altered.

10. During the early morning of January 26, 1988, Heath was advised by R. Carney, an industrial engineer, that Butler intended to have a contractor perform some work on a gate in his department without stopping production. Heath advised Carney that this would be unsafe and con­trary to an order of an inspector from the Ministry of Labour. A considerable amount of discussion took place that morning between Heath and other management representatives concerning the way in which Butler intended to have the contractor perform the work on the gates. M. Renner, the Industrial Engineering Supervisor and the person who had the overall responsibility for over­seeing the job, and E. Frey were involved in these discussions. When the discussions had con­cluded, Heath and his superiors had reached an impasse. Heath was convinced that the plan to work on the gates while production was running was unsafe. The management representatives were equally convinced that performing the work on the gates while the robot was operating was safe.

11. Renner, with Frey's assistance, attempted to convince Heath that the work could be performed while the robot was operating. When Heath was not initially convinced, Renner and Frey went to the department to demonstrate what was intended. They explained to Heath that a temporary barricade would be installed while the work on the gates was performed. The barricade would be located a few feet within the gate and consist of a chain with a padlock as well as a 4' X 4' cardboard sign on the chain. The key to open the padlock would be fixed to the control key. In the opinion of Renner and Frey, the temporary barricade achieved the same objective as the original gate since both prevented someone from inadvertently walking into the cell while the robot was operating. Heath was not convinced and in his evidence, he indicated that he had a number of con­cerns. One concern was the amount of lift truck traffic around the cell in question and another was the sparks created by the spot welding. We are not satisfied, however, that these two concerns were clearly communicated to Renner and Frey. The concern which was the primary motivation for his conduct was the fact that Heath felt that the temporary barricade was not an adequate means of protecting the integrity of the lockout procedure. Heath asked Frey if Frey would assume responsibility for the area if he felt the work could be performed so safely. Frey indicated that he would not assume that responsibility and advised Heath that while on the premises Heath was responsible for his area. Heath then restated his position that since the work was not going to be performed in a safe manner, he would not permit the work to be done in his area.

12. Renner felt somewhat frustrated by this turn of events. The discussion took approxi­mately thirty minutes, no work was performed and he and Frey were unable to convince Heath that the work should proceed. Renner and Frey decided to leave Heath's department and went to department 89 which was supervised by D. Shrubsall. The work to be performed with the gates in department 89 was similar to the work required on the gates in the other departments. However, the robots in department 89 were smaller and further away from the gate when compared to those in department 91. Renner explained to Shrubsall the work that was to be performed as well as Heath's objection. When the discussion with Shrubsall occurred, D. Gordier, an employee mem­ber of the joint health and safety committee, was present. Renner explained and demonstrated the temporary barricade. After discussing the situation with the employees in the department, Shrub­sall indicated that the work could go ahead. Shrubsall testified that, in her view, the work could be done safely and she was satisfied that the temporary barricade did not compromise the lockout pro­cedure since it achieved the same result. The contractor's employees proceeded to work on the gates in department 89. Gordier did not object to the work proceeding after the discussion with Renner and Frey, nor did he object subsequently after he had the opportunity to observe the work being performed.

13. On January 26, 1988, Heath had a brief discussion with Shrubsall in which he indicated to her that they should stick together and support each other. The work on the gates in department 89 continued to be performed on January 27. Renner and Heath talked briefly on that day. Renner indicated that the gates would have to be installed in Heath's department. Heath responded "fine, as long as it is done safely". Heath also talked to McGeoch on January 27. McGeoch told him that he, McGeoch, had a "big war" with Renner over Heath's conduct and that he should be sure of what he was doing. Heath responded that he was sure of what he was doing and that safety came first.

14. On January 27, the work on the gates was completed in department 89. On January 28, the contractor's employees were again in department 91 and Renner asked Heath if the work could proceed. Heath said that it could not proceed if production was to run. The contractor's employees then went to department 90, another department supervised by Shrubsall. Since the robot was larger and closer to the gate in department 90, Shrubsall approached Renner with some safety con­cerns. Renner explained the programmed working envelope of the robot, the electronic self-check feature and the 8' foot high post which acts as a barrier in order to convince Shrubsall that the work could be performed safely. After Renner's explanation and after again discussing the matter with employees under her supervision, Shrubsall was satisfied that the work could proceed safely. At this point, the employees of the contractor had some safety concerns. These employees were given the same explanation from Renner that Shrubsall received. There was some discussion about having an inspector come to the site, but after the explanation, the contractor's employees were satisfied that the work was safe. The work started and was completed in department 90 on January

16. On January 29, the contractor's employees were instructed to report to department 91. Renner went to the cell and asked Heath if they could go ahead and work on the gate. Heath said no since it was unsafe unless production was shut down. Renner advised McGeoch of the situation and in his evidence noted he was a little frustrated with what was going on. After advising McGeoch of the situation, Renner's involvement in this matter ended. Frey did not participate in the events of January 29. The only direct evidence we have concerning the material events of Janu­ary 29 is Heath's evidence.

17. At approximately 9:10 a.m. on January 29, McGeoch asked Heath where the contrac­tors were and when Heath advised him of their location, McGeoch told 1-leath that the gates had to be done. When Heath told McGeoch that production should be shut down, McGeoch gave him some money to purchase coffees and told Heath that he would meet him in department 91. When Heath arrived at the department, it was evident that the contractor's employees were preparing to work on the gate. Heath asked McGeoch what he was doing and McGeoch responded by saying that the gates had to be done. Heath again advised McGeoch that it was not safe to perform the work while production was running. McGeoch then tried to put his arm around Heath's shoulders and told Heath to go for a walk. Heath testified that at that point he knew he had to make a diffi­cult decision since Butler intended to work on the gates while production continued and wanted him to turn a blind eye to the situation. Heath walked over to a supervisor who he was training and asked him to look after department 91. He then went to the supervisor's office where he met Don Reid, another supervisor. Heath told Reid that he was going home since there was "a lot of bullshit going on down there" and he was not going to be held responsible. When Reid said Heath would be back Monday, Heath said he would if there was "no more bullshit". Since Reid had said he was leaving the company earlier in the week, Heath shook his hand, said goodbye and then left the plant and went home. Butler was about to perform work in his area which he felt was unsafe and at the same time Butler was telling him that he was responsible as long as he was on the prem­ises. In his evidence, Heath indicated that he felt he had no other choice in the circumstance but to leave the plant. Shortly after Heath left the plant, the work on the gates in department 91 was stopped. This work continued on January 30 when production was not running.

18. After arriving at his home, Heath called the Ministry of Labour and advised them of the situation. He then called his wife before leaving the house. When he returned home, he was advised that G. Ducharme, Production Manager, had phoned and left a message to the effect that Heath call him on Monday morning. That evening Heath called D. Reid to ensure that the over­time work on the weekend was covered and was advised by Reid that it was.

19. On Monday, February 1, Heath got dressed for work, took his daughter to the babysit­ter, came home and phoned Ducharme. The only evidence we have of this conversation is Heath's. By the time of the hearing, Ducharme had left the employ of Butler and did not testify. Heath asked Ducharme if everything in his area was okay and whether it was safe for him to return. Duc­harme said no to Heath's returning and advised Heath that he expected his resignation in writing. Heath told Ducharme that he was not resigning and explained to him why he left the plant the pre­vious Friday. In particular, he told Ducharme that Frey had advised him that he was responsible as long as he remained on the premises. Ducharme insisted on obtaining Heath's resignation and advised Heath that he was guilty of gross misconduct unbecoming of a supervisor. The conversa­tion ended by Heath advising Ducharme that he, Heath, would talk to somebody who would hope­fully look at the situation more rationally.

20. R. Pederson is Butler's Director of Human Resources and Purchasing. After speaking with Ducharme, Heath called Pederson and asked him if he could intervene on his behalf. Peder­son was unaware of the events of Friday, January 29 and the telephone conversation between Heath and Pederson was brief. Pederson's recollection of the conversation was that Heath wanted his assistance in getting his separation papers as soon as possible. Pederson testified that he told Heath he would pass the matter on to J. Dienesh, the manager of employee relations. Pederson indicated that after talking to Dienesh his involvement in the matter ended. Heath's recollection of the conversation, which we prefer, is that he told Pederson why he left the plant on Friday, he told him about his conversation with Ducharme and he said that if he was being released he would like to obtain his release papers quickly. Heath testified that the conversation ended after Pederson told him he would get Dienesh to do a complete investigation.

21. Dienesh testified concerning the investigation he conducted. It was not Dienesh's role to determine Heath's employment fate and we do not propose to set out the details of his investiga­tion. Suffice it to say that he talked to McGeoch and Reid and then spoke to the complainant dur­ing the early afternoon of February 1. Heath explained to Dienesh why he left the plant on Friday. He told Dienesh that he had no alternative but to leave the plant since he would be held account­able for safety with respect to work which he felt was unsafe. Heath asked that his separation papers be prepared quickly and a meeting was arranged for Wednesday afternoon. Dienesh tes­tified that it appeared to him that Heath was severing the employment relationship. On Tuesday, Dienesh spoke with McGeoch, Frey and Renner. At their Wednesday meeting, Dienesh had a brief discussion with Heath before giving him his separation papers. Among other things, Heath advised Dienesh that he was not required to work overtime on the previous Saturday as Dienesh alleged. When Heath observed that his separation papers indicated he had quit, he advised Dien­esh that he had not quit and that he would get the Ministry of Labour involved. Since January 29, Heath has had a number of discussions with an inspector from the Ministry of Labour.

22. In essence, Heath argued that Butler contravened section 24 of the OHSA in not per­mitting him to return to work subsequent to January 29. Section 24 prohibits certain employer con­duct because the worker has acted in compliance with the Act or the Regulations or has sought the enforcement of the Act or the Regulations. With respect to whether or not he acted in compliance with the Act or the Regulations, Heath relied on section 79 of the Regulations. Counsel for Butler argued that whether Heath quit or was terminated by Butler, there is no evidence to support the conclusion that Butler acted in the way it did towards Heath because of any of the prohibited grounds set out in section 24(1).

23. The relevant parts of section 24 of the Act and section 79 of the Regulation read as fol­lows:

24.-(l) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under 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.

79. A part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when,

(a) motion that may endanger a worker has stopped; and

(b) any part that has been stopped and that may subsequently move and endan­ger a worker has been blocked to prevent its movement.

23. In Ministry of Community and Social Services, [1988] OLRB ]Rep. Jan. 50 at paragraphs 18 and 19, the Board made the following comments concerning the nature of the prohibitions con­tained in subsection 24(1) of the OHSA:

24. 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.

25. Section 24 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).

26. The focus of the Board's inquiry in complaints such as the one before us is addressed in Commonwealth Construction Company, [1987] OLRB Rep. July 961 at paragraph 21:

27. The 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 (or regulations etc.) or seeking its enforcement. An employee might engage in conduct warranting discipline, 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 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:

28. We now turn to the unfair labour practice provisions underlying this compliant 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 anti­union 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, [19761 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 OR. (2d) 422 wherein the Ontario High Court overturned a lower court decision which had dismissed a complaint under section 110(3) of the C2nada 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 actions 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.

25. We have examined the evidence and submissions before us in the context of the Act's provisions and the principles enunciated in the cases referred to above. The central questions that must be addressed are whether Butler has satisfied us on a balance of probabilities that its treat­ment of Heath was not based in whole or in part on his acting in compliance with the Act or the Regulations or because he sought the enforcement of the Act or the Regulations.

26. A finding that Heath voluntarily quit his employment with Butler would necessarily lead the Board to conclude that Butler did not contravene section 24 of the Act. However, the facts do not support the conclusion that Heath quit. The right to quit one's employment is a right which is peculiar to the employee and in order to determine whether Heath quit his employment, the Board must, in effect, decide whether he voluntarily intended to sever his employment relationship with Butler. In determining this issue, we are cognizant of the jurisprudence which recognizes that the act of quitting consists of both a subjective intention to leave one's employer as well as some objec­tive conduct consistent with that intention (see Anchor Cap & Closure Corp. of Canada Ltd., (1949), 1 L.A.C. 222 (Finkelman)). Heath's leaving the plant during the early part of his shift on January 29 may be some objective evidence of quitting. However, the evidence discloses that Heath did not intend to quit Butler. Heath left the plant on January 29 since he did not want to be responsible for the performance of certain work which he felt was unsafe. Frey had told him that as long as he was on Butler's premises he was responsible for his area. 1-leath felt he had no option but to leave the plant while the work which he considered to be unsafe was being performed in his department. On Monday, Heath was prepared to return to work. He specifically told Ducharme on Monday and subsequently told Dienesh that he was not quitting. Upon reviewing all of the circum­stances, the Board finds that Heath did not quit his employment with Butler on January 29. Although he left the premises on that day, he intended to return to work and the Board can only infer from a review of all of the evidence that it was Butler who determined that his employment with the company would not continue.

27. Having determined that Heath did not in fact quit his employment, we must still ask whether Butler's treatment of Heath was based solely on its view that he quit. Heath specifically advised at least two of his superiors subsequent to January 29 about the reason for his leaving the plant on January 29 and indicated to them as well that he was not quitting. The evidence Butler primarily relied on to establish that Heath quit was the evidence of Dienesh. Dienesh merely con­ducted an investigation of the incident and the evidence, does not establish that he was the Butler official who determined that Heath quit. Dienesh formed his views based on discussions with some of the key participants in the incident but the direct evidence of these individuals is not before us. There is no indication in Dienesh's evidence that he spoke with Ducharme about the matter. In these circumstances, we are not prepared to conclude that Butler treated Heath in the manner it did solely on the basis that it formed the view that he quit his employment.

28. Heath did not argue that he had complied with section 23 of the Act, nor did he argue that he was complying with an inspector's order. As noted earlier, Heath alleges that Butler treated him the way it did because he complied with section 79 of the Regulations. In order for Heath to succeed on this aspect of his case, the Board must be satisfied that he complied with the Act and that Butler responded in the ways detailed in (a) to (d) of subsection 24(1) of the Act because of his compliance. Section 79 of the Regulation prohibits, among other things, the repair or maintenance of machinery when any motion that may endanger a worker has not been stopped. The repair work in this instance was not performed on the robots but on the gates to the fence enclosing the robot. In any event, when reviewing all of the evidence and the position of Heath and the Butler officials, we are satisfied that it is more probable to conclude that the work Butler performed concerning the gates while production was running was safe. In arguing that we should reach this conclusion, counsel for Butler emphasized that no one, including the contractor's employees, refused to perform the work. He also noted that after raising some concerns about the safety of the work, all of the participants ultimately concluded that the work was safe, except Heath. Although this is so, the subjective views of some participants to an event cannot be given much weight when one is attempting to determine safety issues from an objective perspective. However, the nature of the temporary barricade, the safety features of the robot and the cell, as well as the other circumstances, lead us to conclude that Heath was probably not right in conclud­ing that the work in question was unsafe. Heath's view that no one could enter the gate while pro­duction was running, irrespective of the reason, was a very strict interpretation of the lockout pro­cedure. The procedure was designed to prevent individuals from entering the cell to work on the robot or to inadvertently enter the cell while the robot was operating. On the basis of the evidence before us, we are satisfied that the work that was performed on the gates with the temporary barricade in essence satisfied the objective of the lockout procedure. Therefore, the Board is satisfied that Butler did not treat Heath the way it did because he complied with the Act or the Regulations since we are unable to conclude from the evidence and given Heath's submissions that he was act­ing in compliance with the Act or the Regulations.

29. We turn now to the question of whether Butler has satisfied the Board that its treatment of Heath was not based on the fact that Heath sought the enforcement of the Act or the Regula­tions. Although we have determined that Heath's actions were not in compliance with the Act or the Regulations, we are satisfied that his conduct during the week in question was motivated by genuine safety concerns. In determining that the work on the gates while production was running was unsafe, Heath was acting in good faith. He raised his safety concern with his superiors and it was because of this concern that he refused to give his permission for the work to proceed. We note that in his discussion with Carney, Heath made reference to the inspector's order. In one sense, it is not surprising that his superiors were feeling somewhat frustrated when they were met with such resistance by someone on the management team. By refusing to give his permission to work on the gates, Heath's objective was the enforcement of the OHSA.

30. The Board does not condone the way in which Heath left the plant. He failed to inform or seek the permission of his superiors to leave. At the same time, the Board appreciates the diffi­cult position Heath was in. But whether or not Heath was entitled to leave the plant on January 29 in the way he did, what we have to decide is whether Butler has satisfied us that the sole reason for its treatment of Heath was because of his leaving the plant, or whether its conduct was at least in part motivated by Heath's efforts to enforce the Act. As the Board noted in Ministry of Commu­nity and Social Services, supra, the Act provides that persons who attempt to seek enforcement of the Act are engaged in protected activity in order to encourage workers to raise health and safety concerns. Even if the workers' concerns are ultimately found not to be a contravention of the Act or the Regulations, as we have so found Heath's concerns, an employer is prohibited from responding in the ways detailed in (a) to (d) of subsection 24(1) of the Act because a worker sought enforcement of the Act or the Regulations.

31. The evidence of Renner, Frey, Pederson and Dienesh discloses that these Butler offi­cials were not the ones who decided that Heath could not return to work. It appears from the evi­dence that Ducharme was the Butler officer who determined Heath's fate. Ducharme called Heath's home on January 29 and during their conversation on February 1, he asked Heath for his resignation. Pederson played a very minor role in the matter and Dienesh simply conducted an investigation of an incident that had occurred. From Heath's evidence, it is clear that Ducharme was concerned about Heath's leaving the plant on January 29. But on the evidence before us, the Board cannot be satisfied that the sole basis of his concern or Butler's concern was the fact that Heath left the plant. We can only conclude that Heath's leaving the plant on January 29 the way he did was of significant concern to Butler but without hearing from the individual responsible for deciding that Heath's employment would not continue, we are unable to conclude that it was the only reason behind Butler's decision. We have reached this conclusion in the face of some evidence that at least one managerial participant felt somewhat frustrated with Heath's efforts to enforce the Act.

32. Accordingly, the Board finds that Butler contravened section 24(1) of the Act in its treatment of Heath. Butler is directed to compensate Heath for his losses for the period of Febru­ary 1, 1988 to May 2, 1988.