Mark Engleden v. Art Shoppe, 1988 CanLII 3771

[1988] OLRB Rep. August 729

0119-88-OH Mark Engleden, Complainant v. Art Shoppe, Respondent

BEFORE: Judith McCormack, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.

APPEARANCES: Mark Engleden for the complainant; Peter J. H. Neal for the respondent.

DECISION OF THE BOARD; August 5, 1988

1. This is a complaint alleging that the respondent violated section 24 of the Occupational Health and Safety Act (OHSA) by discharging the complainant because he refused to perform unsafe work.

2. The complainant, Mark Engleden, was hired by the respondent on March 26th, 1988 to work in its furniture warehouse. As part of his job interview, Mr. Engleden was asked by Peter Neal, the respondent's administrator, to lift a dresser with another worker. Mr. Neal testified that this dresser weighed 168 pounds. Having performed what Mr. Neal referred to as a test, Mr. Engleden was accepted for employment. It was suggested to him at that time by Mr. Neal that he might eventually progress to the position of a van driver, but Mr. Engleden agreed that no guaran­tees were extended by Mr. Neal in this regard.

3. The evidence made it clear that Mr. Engleden was not a satisfactory employee from the respondent's point of view. Within the first two weeks of his employment, he was late for work four times, ranging from two minutes to thirteen minutes late. In addition, he had arranged with Mr. Neal at the time of his hiring to take time off during the first week to sit for a driver's examina­tion to up-grade his driver's license. Mr. Engleden referred to this as having arranged the day off for this purpose, while Mr. Neal told the Board that he had expected him back that afternoon and was annoyed when Mr. Engleden did not report for work at that time. On the Wednesday of his second week of employment, Mr. Engleden broke Out in a rash and decided to see a doctor that morning. He attempted to notify the respondent accordingly, but the telephone number listed in the telephone book for the respondent connected only to a recorded message. He attended at his doctor's office and eventually arrived for work at 1:30 p.m. At that time, he submitted a doctor's note to his supervisor, Ray Brufatto Sr. He also showed him the rash in question. From Mr. Neal's point of view, Mr. Engleden had failed to report for work that morning without notifying the respondent.

4. On April 15th, Mr. Engleden reported for work as usual. On that day the warehouse was short-staffed because one employee had quit, another had been transferred to another depart­ment and a third had injured himself at work and was not available to help with lifting. Mr. Engle­den was asked to lift a travertine table with another employee, which he estimated as weighing approximately three hundred pounds, an estimate which was not challenged by the respondent. In addition to its weight, Mr. Engleden described the lifting motion necessary as awkward because the table was on its side, surrounded by crate packaging containing protruding nails. Mr. Engleden told his supervisor that he was concerned that he might injure his back. Mr. Brufatto accordingly assigned other employees to lift the table. Mr. Engleden was then assigned to lift a hutch with another employee from either ground level, or a dolly two or three inches off ground level, to the top of a cabinet approximately three and one-half feet high. Mr. Engleden estimated the weight of the hutch to be between 200 and 300 pounds. In argument, Mr. Neal asserted that it was 230 pounds. Mr. Engleden accidentally dropped his end of the hutch. He then told his supervisor he was not prepared to lift the hutch either and that he was refusing to work under the OHSA because he was afraid he would injure his back. Mr. Brufatto consequently assigned Mr. Engleden to another job feeding refuse into a garbage compactor, and notified Mr. Neal of Mr. Engleden's refusal.

5. Mr. Neal went over to where Mr. Engleden was working and asked him what the prob­lem was. Mr. Engleden explained again that he was refusing to lift the hutch under the OHSA because he was afraid he would injure his back. Mr. Neal then fired him.. Mr. Engleden suggested to him that he was supposed to conduct an investigation, and Mr. Neal told him that he had lifted the hutch himself with another employee and that it was not too heavy. Mr. Engleden subse­quently filed this complaint.

6. Sections 23 and 24 of the OHSA provide as follows:

(3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine, device or thing he is to use or operate is likely to endanger himself or another worker;

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

(c) any equipment, machine, device or thing he is to use or operate or the physical 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.

(7) An inspector shall investigate the refusal to work in the presence of the employer or a per­son representing the employer, the worker, and if there is such, the person mentioned in clause (4)(a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the work place or part thereof is likely to endanger the worker or another person.

(9) The inspector shall give his decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4)(a), (b) or (c).

(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his work station during his normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during such hours; or

(b) subject to section 24, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the work place or the part thereof which is being investigated unless the worker to be so assigned has been advised of the refusal by another worker and the reason therefor.

(12) The time spent by a person mentioned in clause (4)(a), (b) or (c) in carrying Out his duties under subsections (4) and (7), shall be deemed to be work time for which the person shall be paid by his employer at his regular or premium rate as may be proper.

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.

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

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

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsec­tion (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.

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

(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

7. In Inco Metals Co., [1980] OLRB Rep. July 981, the Board in considering the predeces­sor to these sections said that it "must interpret and apply the Act bea:ring in mind the shortcom­ings of the pre-existing law that it was designed to remedy". After reviewing those shortcomings at some length, together with the social and human toll taken by industrial accidents and their adverse impact on the economy, the Board concluded that the predecessor provisions "must be given a liberal and constructive interpretation that is consistent with the intent of the legislation

8. Similarly, the Board observed in The Corporation of the City of Toronto, [19861 OLRB Rep. Dec. 1834:

We also agree that the Board should not put an unduly rigid construction on the terms of section 23(1), lest employees be discouraged from raising safety issues at the work place. That would be inconsistent with the scheme of the Act. Section 23 is designed to promote and protect employee prudence, while at the same time, providing a mechanism for tesolving legitimate concerns through a process of discussion with the employer, and, if necessary, the assistance of a "neutral" official of the Ministry of Labour. It is both proper and desirable that employees should be able to voice their safety concerns without fear of penalty or reprisals....

The Board has commented that initially an employee may refuse work which he or she has reason to believe is unsafe, a test which is subjective in its nature (see, for example, The Corporation of the City of Ottawa, [1986] OLRB Rep. June 798). Where there is such a refusal, the employer is required to investigate the matter forthwith in the manner set out in section 23. Following that investigation or steps taken to deal with the circumstances that prompted the work refusal, the worker may continue to refuse if he or she has reasonable grounds to. believe that the work is unsafe. The Board has concluded that this subsequent test is an objective one, and has adopted this enunciation of the test set out in Inco Metals, supra, with respect to the predecessor legislation (see for example, Camco Inc., [1985j OLRB Rep. Oct. 1431):

59. On a complaint such as this, therefore, in considering whether an employee had reasonable cause to refuse to work in a given situation, this Board must ask itself whether the average employee at the work place, having regard to his general training and experience, would, exer­cising normal and honest judgement, have reason to believe that the circumstances presented an unacceptable degree of hazard to himself or to another employee.

Where the worker continues to refuse, an inspector is required to investigate the refusal in the presence of the employer, the worker and an employee representative after which the inspector gives his or her decision in writing to the parties.

9. At no stage must an employee be proven correct with respect to the safety of the work. Rather, in Inco, supra, the Board said that it will look at the reasonableness of the employees' views in light of the information available to the worker at the time of the refusal:

The ability of an employee to invoke the right to refuse work does not depend on whether there is in fact any danger. The question is whether at the time an employee refuses to perform his work he has reasonable cause to believe that it is unsafe to do so. The fact that it may later be shown that there was no real danger at the time an employee refused to work doesn't mean that the employee was wrong in exercising his right under the Act. The events must be assessed in the light of knowledge available at the time that the employee refused to work.

See also Imperial Oil Ltd., [19821 OLRB Rep. Apr. 580, and Wilco Canada Inc., [1983] OLRB Rep. Oct. 1759 in this regard.

10. In this case, it was not disputed by the employer that at least one of the reasons Mr. Engleden was discharged was because he had refused to lift the hutch. While it was clear that Mr. Neal found him an unsatisfactory employee in other respects, the respondent did not suggest that Mr. Engleden was fired for tardiness or his absences rather than for his work refusal. Instead it appeared that when Mr. Engleden refused to lift the hutch, it was the last straw as far as Mr. Neal was concerned from an employee whose work habits had already showed shortcomings. As the Board noted in Commonwealth Construction Company, [19871 OLRB Rep. July 961, if only one of the reasons for the penalty imposed is the exercise of rights under the OHSA, a violation of section 24 occurs. Here it was not denied that Mr. Engleden's refusal triggered his discharge, although there were additional reasons why Mr. Neal was not satisfied with his work performance. Neither Mr. Engleden's deficiencies as an employee, nor his short period of service disentitle him from the protection offered by section 24 of the Occupational Health and Safety Act although these factors might be relevant if the reasons for his discharge were in dispute. In this case, however, as noted above, it was not disputed by the respondent that Mr. Engledon's work refusal was at least one of the reasons for his discharge.

11. We must therefore determine whether Mr. Engleden was acting in compliance with the OHSA at the time of his refusal. Under section 23 this involves first ascertaining whether he had reason to believe that lifting the hutch was unsafe. Mr. Engleden told the Board that he felt that lifting the hutch was unsafe both because of its weight and because it had to be lifted from ground level or shortly above to waist level. He testified it was his understanding that most workers' com­pensation claims were claims involving injured backs, and that he did not want to end up on com­pensation where, as he put it, he would be no good to anybody. Mr. Engleden estimated weights on two previous jobs he held as a shipper-receiver, and he believed that the hutch weighed between 200 and 300 pounds. Thus, he concluded that his share of that weight when lifted with another employee would be between 100 and 150 pounds. He testified that normally more employ­ees are available to help lift heavy furniture. Although it was clear that he was somewhat disen­chanted with his job generally, it was also obvious that he was genuinely concerned about his back. In these circumstances we find that the complainant had reason to believe, in a subjective sense, that lifting the hutch was unsafe.

12. It is open to serious question whether Mr. Neal or Mr. Brufatto's actions constituted an investigation under section 23(4). Among other things, that provision specifically requires that the employer conduct the investigation "in the presence of the worker". However, assuming without deciding that the respondent did fulfill the requirements of section 23(4), we are satisfied on the totality of the evidence that the complainant had reasonable grounds for continuing to refuse to lift the hutch without more assistance. To some extent it may fairly be said that the weight of the dresser and the type of lift speak for themselves. Assuming the respondent's weight estimates are more accurate than the complainant's, Mr. Engleden was required to lift a large and awkward piece of furniture weighing approximately 230 pounds with the help of another employee. The type of lift required, even if performed properly, would by its nature tend to expose Mr. Engleden's back to considerable strain. We note that Mr. Engleden would not have a significant degree of con­trol over the lift, and that depending on the shifts in weight which might occur and the strength and ability of his co-worker, the share of the load on Mr. Engleden might vary substantially. In addi­tion, Mr. Engleden was a new and inexperienced employee. Mr. Neal acknowledged that new employees were introduced to lifting heavier items of furniture gradually to give them time to build up their strength and proficiency, (although in his view, the hutch was not a heavy item).

13. Mr. Neal's central argument with respect to the weight of the hutch was that he himself, an older man than Mr. Engleden, had lifted it with another employee and that therefore it was not too heavy. While this is a relevant fact to consider, we do not find it persuasive in this case . Mr. Engleden's position was not that he could not lift the hutch at all, but that he was afraid of incur­ring injury in the process. The fact that Mr. Neal did not injure himself in lifting the hutch once does not necessarily shed much light on whether the complainant had reasonable grounds to believe that the lift was generally unsafe. Work injuries are not consistent or reliable occurrences, and the fact that on one occasion, one person has performed a motion without injury does not mean that an injury may not occur to another, particularly if the latter is required to perform the motion with more frequency, or has relatively little experience.

14. Mr. Neal also argued that his practice was that if employees began to experience sore arms, legs or back, that employee would not be required to lift at that point. He specifically asked Mr. Brufatto at the time if Mr. Engleden was complaining of a sore back, and Mr. Brufatto replied he was not. However, an employee does not have to experience some degree of injury before he or she can exercise rights under section 23. Indeed, one of the primary purposes of that section is to prevent injuries before they occur.

15. Mr. Neal was also of the view that Mr. Engleden had been hired for a heavy lifting job and that he was no good to the respondent if he couldn't perform the work. We note several things in this regard. His argument suggests that Mr. Engleden could be estopped from asserting statutory rights under sections 23 and 24. It is doubtful that this is appropriate or allowable given the thrust of the Occupational Health and Safety Act and its remedial purposes. However, it is not necessary for us to address this question as in any event Mr. Engleden was asked at his job interview to lift an item that was some 60 pounds lighter than the hutch, again using Mr. Neal's weight estimates. Thus, even if Mr. Engleden's acceptance of the job offer after the test could be considered some kind of agreement or estoppel with respect to lifting, simply on the facts such an agreement could not be extended to the hutch. There is no doubt that the furniture warehouse job involves heavy lifting and that as a general proposition, the respondent is entitled to have employees perform the work assigned to them. This does not mean, however, that Mr. Engleden can be required to lift an unlimited amount of weight. In this regard we note that Mr. Engleden's testimony that heavier items are sometimes lifted by four employees rather than two was undisputed.

16. Mr. Neal also appeared to be indignant that Mr. Engleden had called what he described as the Labour Board to ascertain his rights under the Occupational Health and Safety Act before the day on which the incident occurred. We have some doubts as to whether Mr. Engleden was in fact speaking to any personnel at the Ontario Labour Relations Board. However, in any event, this course of action does not strike us as reprehensible in any way. In general the Board encourages employees to ascertain their legal rights and goes to some lengths to notify and inform them accordingly through the use of posted notices and other informational material.

17. For the foregoing reasons, we conclude that the respondent has not met the burden of proof placed upon it by section 24(5) of establishing on the balance of probabilities that it did not act contrary to section 24(1) in dismissing the complainant. Accordingly, we find that the respon­dent's actions constituted a violation of section 24(1) of the Occupational Health and Safety Act.

18. Turning to the issue of remedy, Mr. Engleden candidly told the Board that he was not happy with his employment with the respondent, and that he thought he would have left in any event approximately a month after he was discharged. The remedy for this kind of violation is not intended to be a windfall for employees, but rather compensation for losses suffered as a result of the respondent's violation of section 24. We are not therefore prepared to direct any other remedy beyond the wages and benefits lost by Mr. Engleden during the thirty day period following his dis­charge, together with interest to be calculated in accordance with the Board's Practice Note #13.