Ron Murphy v. Domtar Inc., 1988 CanLII 3777

[1988] OLRB Rep. August 780

2601-87-OH; 2602-87-OH; 2603-87-OH Ron Murphy, Complainant v. Domtar Inc., Respondent; Pat Casey, Complainant v. Domtar Inc., Respondent; Don Chapman, Complainant v. Domtar Inc., Respondent

BEFORE: Judith McCorrnack, Vice-Chair, and Board Members D. G. Wozniak and J. Sarra.

APPEARANCES: P. Turtle, John Booker and Patrick Casey for the complainants; Razvan L. Theodoru, Donald E. Dickie, Hugh Secord and Jean Lameureux for the respondent; William K. Light -foot and Andrea Esson for Marcel Djivre.

DECISION OF JUDITH MCCORMACK, VICE-CHAIR, AND BOARD MEMBER J. SARRA; August 5, 1988

These matters are three complaints filed under section 24 of the Occupational Health and Safety Act ("O.H.S.A.") alleging that the complainants were suspended because they refused to work under unsafe conditions pursuant to section 23 of that Act.
The respondent operates a gypsum mine in Caledonia, Ontario which produces some 700,000 tons of gypsum annually. Approximately eighty people are employed in the mine, including the three complainants. The electrical system servicing the mine is old, and at the time of these events had become overloaded as a result of expansion. Consequently there were frequent localized power failures in the mine in the late summer and early fall of 1987. The number of power failures were estimated by Donald Dickie, the respondent's mine superintendent, at ten per week, and by the complainants at one to four per day. The power failures lasted some three to ten minutes each, depending on how long it took for an employee to reset the breaker. In addition, there had been a rash of small equipment fires in the mine during the same period.
The mine is equipped with a fire alarm system consisting of flashing beacons and sirens. Prior to the events which gave rise to these complaints, the complainants were under the impression that the fire alarm system was connected to an electrical circuit independent of the general electrical system in the mine, and that it would therefore continue to operate in the event of a power failure. Indeed, two of the complainants had received assurances to this effect some months previously from Vic Bochmeier, the respondent's health and safety officer. On the morning of November 26, 1987, the respondent conducted a routine fire drill during which a power failure occurred. The respondent and the respondent's employees then discovered simultaneously that the fire alarm system did not function during a power failure. It is fair to say that this caused considerable concern on the part of both employees and the respondent. Shortly thereafter, production ceased in the mine and employees went to a refuge station. The complainants were not present at this time as they worked other shifts. Lorne Frost, the respondent's mine captain, spoke to Carl Booker, an employee who was also Co-Chair of the respondent's Joint Occupational Health and Safety Committee ("JOHSC") and suggested that the problem be discussed at a JOHSC meeting which had been previously scheduled for the morning of the following day. Mr. Booker concurred in this proposal and as a result, production resumed.
Mr. Frost and Mr. Dickie then discussed a contingency plan for alerting the work force of a fire in the event of a power failure. They came up with what both described as a "concept" to take to the meeting the following morning. Mr. Dickie testified that he felt the JOHSC was the proper forum for discussion of the concept because the individuals there had knowledge of the mine, and the JOHSC was empowered to make recommendations. The concept itself was first described by Mr. Frost in the following terms. In the event of a power failure, workers would report to the nearest "dump point", a crusher area in the mine which includes a battery-operated pager telephone providing communication to an attendant on the surface. One of the employees would telephone the attendant to determine the extent of the power failure. If it was localized, and if ventilation was adequate, employees would leave someone in charge of the pager telephone, leave their names and work locations with that person, and return to work. The evidence indicated that the ventilation requirement was necessary because ventilation fans do not function during a power failure.
At eight o'clock the following morning, Mr. Dickie received a call from Gord Allen, an inspector with the Ministry of Labour's Mining Health and Safety Branch. He advised Mr. Dickie that he was planning to investigate a call received the previous evening from Art McKenzie, an employee, in regard to gaps in the fire alarm procedure. Mr. Dickie, who was unaware that the call had been made, told Mr. Allen that the JOHSC would be meeting that morning, and that this problem was one item on the agenda.
At the JOHSC meeting, Mr. Frost presented the concept that Mr. Dickie and he had discussed to the participants, which included Pat Casey, a complainant in these proceedings and the acting Co-Chair in the absence of Mr. Booker, Don Chapman, also a complainant, and Art McKenzie, all representing employees. The respondent was represented by Mr. Frost, Co-Chair, Mel Senner and Gary Elliot. The employee representatives were not in agreement with the respondent's proposal which they found vague and unclear. In their view, when a power failure occurred, employees should go immediately to the closest refuge station until power was restored. Mr. McKenzie advised the meeting that he had spoken to Mr. Allen the night before, and asked for information about what employees should do in the event of a power failure. According to Mr. McKenzie, Mr. Allen had recommended that employees go to the nearest refuge station. Among other things, Mr. Casey pointed out that the pager telephones at dump points were often not working properly, and that the plan involved delays which might be dangerous in the event of a fire. He was also concerned that employees might not be aware of the power failure for some time. The evidence indicated that some 30 per cent of employees work with diesel equipment in headings at the rock face away from lighted areas, so they would not necessarily either see lights go out or hear the ventilation fans going off, although the Board was advised that the ventilation problem would become apparent shortly because of a reduction in the volume of air. There is no back-up lighting system during a power failure, although employees wear cat lamps on their hats.
The distinction between the two plans from the employees' point of view lay in the difference between refuge stations and dump points. Refuge stations have cement and rock walls, are equipped with air lines, lighting, potable water, medical and other emergency supplies. They have pager telephones, are insulated against fire and can be sealed off with clay to keep out smoke. Dump points have only pager telephones, a latrine, a first aid box and a stretcher, and are essentially identifiable locations in the mine where blasted rock is dumped into a crusher. They are not self-contained areas.
Mr. Frost advised the meeting that the respondent was not in agreement with the refuge station proposal because the closest refuge station was farther than the nearest dump point from the area in which employees were working, and such a plan meant increased travel time for employees. This was a problem because power failures were so frequent, and indeed in some cases the power might be restored before employees reached the refuge station. The evidence indicated that the closest refuge station was from 500 to 1000 feet farther from where most of the crew were working than the nearest dump point. It appears from Mr. Frost's estimates that it would take between two to four minutes longer for employees to walk to the refuge station. Mr. Frost was also concerned that employees would be reluctant to leave the refuge station once they arrived there.
The JOHSC did not reach agreement on either the respondent's plan or the employees' plan. The employee representatives in attendance requested that a health and safety inspector be brought in. However, Mr. Frost testified that the respondent disagreed because it felt the problem should be resolved between the parties. It is not clear whether this view was presented at the meeting. Mr. Casey left with the impression that an inspector would be called in. After the meeting, and because he was concerned that no agreement had been reached, Mr. Dickie contacted Marcel Djivre, who is both an inspector, and the Area Engineer for the Mining Health and Safety Branch of the Ministry of Labour. He is also Gord Allen's superior. Mr. Dickie informed Mr. Djivre of the problems revealed by the fire drill, of Mr. Allen's advice to etnployees and of the fact that JOHSC had not agreed upon a contingency plan. Mr. Dickie reviewed the respondent's concept and he and Mr. Djivre compared it to section 23 of Regulation 694 under the O.H.S.A. for Mines and Mining Plants.

10 According to Mr. Dickie, Mr. Djivre told him that it was the respondent's responsibility to formulate a sound emergency plan. Since the regulations were no more specific than this, he felt Mr. Dickie's plan was acceptable and asked Mr. Dickie to send him a copy of the plan. He also said he would not send an inspector to the mine until the middle of the following week, and that the respondent should fully utilize the internal responsibility system, that is, work with employee representatives and the JOHSC to resolve it. Mr. Dickie testified that Mr. Djivre told him to send a confirming letter to the inspector to the effect that the plan was acceptable and that there were no further grounds for a work refusal.

On November 29th, a shift including the three complainants was scheduled to commence at 11:00 p.m. under the supervision of John Lecoupe, a mine foreman who has since left the employ of the respondent. Mr. Lecoupe arrived at approximately 10:15 p.m. and went to his office. Since he had been off work for three days previously, Mr. Frost had written a note to him in the captain's log book to the effect that there was a new contingency fire plan, and that Mr. Lecoupe should speak to Gary Elliot, the foreman of the proceeding shift, to get the details of that plan. If he had any questions, Mr. Lecoupe was to phone Mr. Frost at home. While Mr. Elliot and Mr. Lecoupe were discussing the plan, Mr. Casey came into the office, initially to ask about a shortage in his pay. He then entered into the discussion, laying out some of his concerns and suggesting that the refuge station plan was safer. Mr. Lecoupe agreed that it was a good idea. Mr. Casey then went and changed into his work clothes to go underground. In the meantime, Mr. Lecoupe telephoned Mr. Frost, who explained the respondent's plan in more detail than that provided by Mr. Elliot. That explanation took the following form, which was later relayed to employees. If the power failed, crews were to go to the dump point. The dump point operator would then call the surface to find out if the power failure was localized or mine wide. If it was a localized power failure, employees were to give their work locations to the dump point operator and return to work, providing ventilation was adequate. Should an emergency such as a fire or a total power failure arise, the dump point operator would go and find the men in the headings, and they would go to a refuge station. A mine wide power failure constitutes an emergency because the mine's air supply is cut off.
Mr. Casey returned to the foreman's office in his work gear and Mr. Lecoupe advised him that the respondent's contingency plan would be implemented. Mr. Casey expressed a number of his concerns about the plan, to which Mr. Lecoupe responded that there was no fire or power failure at that moment. He then phoned Mr. Frost again to advise him of Mr. Casey's concerns and subsequently advised Mr. Casey that the respondent's contingency plan would stand. Mr. Casey responded that in that case, he would have to refuse to work under the O.H.S.A., and that he wanted to consult with his shift health and safety representative, who happened to be Mr. Chapman.
Mr. Chapman then attended at Mr. Lecoupe's office and was also advised of the respondent's contingency plan. He indicated his own unhappiness with it as well and told Mr. Lecoupe that it was better to be safe than sorry, and that he thought going to the refuge station was a better plan. Mr. Lecoupe agreed that it was better to be safe than sorry, but said that he had to follow Mr. Frost's orders. Mr. Chapman also refused to work and told Mr. Lecoupe that he should canvas the other employees.
Since Mr. Frost had also told Mr. Lecoupe to make sure employees were informed of the respondent's contingency plan, Mr. Lecoupe went to the "dry" where the crew was assembled (except for the maintenance men who had already gone underground). Employees there were engaged in a lively discussion of the respondent's plan. Mr. Lecoupe explained the problem that the fire drill had revealed, related the company's contingency plan as Mr. Frost had described it, told employees that the Ministry of Labour had approved the plan, and advised them that Mr. Casey and Mr. Chapman had refused to work. He then polled each employee in turn as to whether they were prepared to work. All but two refused. Mr. Lecoupe returned to his office to call Mr. Frost again.
Mr. Frost advised him not to do anything until he called back. In the meantime, Mr. Elliot, who had remained during these events, told Mr. Lecoupe in the presence of Mr. Chapman that he thought it was not a bad idea to go to the refuge station and that he would be willing to back Mr. Lecoupe on it with management. Mr. Elliot also suggested that Mr. Lecoupe let employees use a refuge station for that night until management could work the problem out and get something down about the plan in writing. Mr. Lecoupe testified that he made it clear to Mr. Elliot that although each of them may have had their own ideas, the respondent's formal procedure would be followed. While going to a refuge station that night was the obvious and easy solution according to Mr. Lecoupe, it amounted to avoiding the issue.
In the meantime, Mr. Frost had called Mr. Dickie (one of a number of calls between the two men that night) who advised the former that this was not a legitimate work refusal, but rather frivolous insubordination which would result in discipline. He told Mr. Frost to tell Mr. Lecoupe to instruct the crew to work, and that anyone who refused to work was to leave the respondent's property. Mr. Dickie also told Mr. Frost that the employees' health and safety representative could call Mr. Djivre who had accepted the respondent's plan. Mr. Frost relayed this information to Mr. Lecoupe and told him that the respondent's contingency plan would stand. Mr. Lecoupe told Mr. Frost that John Booker, another employee, and Mr. Casey were quite upset and that Mr. Booker wanted an inspector to come out to the mine site. Mr. Frost then relayed Mr. Dickie's suggestion that the health and safety representative call Mr. Djivre. At that point Mr. Booker assumed the role of employee health and safety representative from Mr. Chapman because of the former's experience, and he had a somewhat heated conversation with Mr. Djivre on the telephone for a few minutes. According to Mr. Lecoupe, the conversation consisted mostly of Mr. Booker accusing Mr. Djivre of "making a deal" with the respondent. Mr. Lecoupe testified that he then took the telephone and Mr. Djivre told him that he had spoken to Mr. Dickie, he was not sending an inspector out and there was no valid work refusal. Mr. Djivre also told Mr. Lecoupe that he would be coming out to the mine within a few days and that within that time Mr. Dickie should draft a formal proposal for the contingency plan.
Mr. Lecoupe then went back to the dry area and announced that the Ministry of Labour was not going to send an inspector and that the Ministry of Labour was backing the company. He then relayed Mr. Dickie's directions and comments with respect to frivolous insubordination and discipline. At that point, only Mr. Casey, Mr. Chapman and Ronald Murphy, the third complainant, continued to refuse to work. Mr. Murphy was a dump point operator at the time in question. He only became aware of the gap in the fire alarm system when Mr. Lecoupe addressed the crew in the dry area. When he was polled by Mr. Lecoupe, he declined to work as a result of his own concerns about the adequacy of the contingency plan.
All three men who continued to refuse to work were told to leave the property and to report to work the following day. The following morning, November 30, 1987, at 7:00 a.m., Mr. Dickie met with Mr. Lecoupe and Mr. Frost and decided to discipline the complainants. Mr. Dickie also spoke to Mr. Djivre that day, advising him of the work refusals and the discipline, and reviewing the substance of their earlier conversation. At that point, Mr. Djivre was unclear about the locations of the dump points and the basic layout of the work area, so Mr. Dickie described it to him in general terms which did not go into the specific area where the men were working.
On that same day, November 30th, Mr. Dickie and Mr. Frost drafted the following contingency plan:

#2 Mine 324 Underground Fire/Emergency Contingency Plan

In the event of power outage or warning system failure, the following procedure shall apply:

All workers shall proceed to the dump point in their work area.
On arrival the senior person shall call the hoistman and/or C4 crusher and shop, as required, to determine the extent of the power outage or warning system failure and the areas affected.
The hailer phone shall be tested to ensure it is working.
The senior person, or person so designated by the Foreman will attend the phone for the duration of the power outage or warning system failure.
All workers shall contact the person attending the phone. At this time each worker will communicate to the attendant the area in which he/she will be working so they may be contacted if necessary. They shall again contact the attendant before relocating to another work area, to notify said attendant of the new work location.
In the event of an emergency, the hoistman, or crusherman shall contact the designated attendant in addition to activating the alarm system.
The attendant will cause notification to be given to all persons and the requirements of the fire/emergency procedure shall apply.
The foreman shall be notified as soon as possible after implementation of the contingency plan.

NOTE: In all cases, return to work areas is subject to provision of adequate ventilation for equipment to be used in each area.

Later on November 30th Mr. Dickie wrote to Mr. Djivre as follows, enclosing the contingency plan:

Further to our telephone conversations of November 27 and November 30, 1987 regarding fire and emergency procedures, please note the following;

Domtar Caledonia mine has a beacon and siren system to notify underground workers of a fire. A recent fire drill was initiated at a time when the power u/g was off in localized areas. This drill indicated to us that a contingency plan is required. Such a plan was discussed but unfortunately unresolved at the JHSC meeting November 28, 1987. Attached is a written draft outline of this contingency plan.

The overall u/g fire/emergency procedure will be revised to incorporate this plan.

From our conversations I understand the MOL is in agreement with the attached plan. This contingency plan conforms with section 23(2) of the Regulations for Mines and Mining Plants. It was also confirmed that it was unnecessary for an inspector to intervene immediately. Also employees not agreeing with the plan do not conform to the work refusal section of the Act as the health and safety of those employees is not in jeopardy.

The contingency plan places backup people near an u/g phone system. That person(s) is then in a position to notify anyone in the area of an emergency. I am confident that under such a program, it is possible to notify everyone within 10-15 minutes of becoming aware that an emergency exists.

Based on the backup plan, Caledonia mine definitely conforms to section 23 of the regulations. We are also upgrading our electrical system to minimize power failures. Other methods will be assessed to provide backup to the existing system.

Note, the electrical system at Caledonia Mine is being updated to minimize power failures and backup systems will be assessed.

A copy of the contingency plan will be posted, a copy will be given to the JHSC, and all employees will be instructed on this procedure by December 1, 1987.

I trust this continues to meet with your approval. This procedure will be available for your review during your visit of December 2, 1987. At such time we will involve a member of the JHSC for input on any possible revisions. I would recommend that the procedure be formally reviewed by the JHSC following our December 2nd meeting.

Mr. Djivre wrote back on December 6, 1987 as follows:

In response to your letter dated Nov. 30, 1987, regarding the establishment of a Fire/Emergency contingency plan, and our telephone conversations of Nov. 27, and Nov. 30, 1987, the following comments are made:

From our conversations, it was my understanding that you were going to provide radio communications to alert your workers of an emergency or fire when the power underground is off. The details of your plan in my opinion should be resolved by the Joint Health & Safety Committee and/or the employer.

Assessment report no. 02964 further clarifies my position in this regard. Further to our conversations of Dec. 4, 1987, I understand that in the interim period workers will be advised to go to the refuge station in the event of a power outage.

Please consult the Papers presented at the Comm-Lite Seminar on Nov. 24, 1987, in Sudbury for examples of effective portable radio communications systems in underground mines.

Should you require further advice in the near future, either myself or Mr. Walter Hitchman, Mining Engineer, may be consulted.

On December 1st, the day after the complainants' refusals, the respondent posted the written contingency plan on Mr. Djivre's instructions. Also on December 1st, Mr. Murphy and Mr. Chapman were sent letters suspending them for one day each as a result of their work refusals. Mr. Casey was sent a similar letter suspending him for three days on December 4, 1987. Mr. Chapman, who also refused to work on November 30th, was sent home again on that date.
Mr. Djivre attended at the mine on December 4th. He performed no inspection, but rather met with company officials and prepared a report. The meeting was originally scheduled to include employee health and safety representatives, but they arrived late. By the time they appeared at the meeting, Mr. Djivre had completed his report which he then presented to them. That report reads as follows:

Concern Regarding Section 23(2) of the Mining Regulations.

On or about November 29, 1987 the writer received a phone call shortly before midnight from Mr. John Booker, Union President to notify a refusal to work. During discussions with both Messrs. John Booker and John Lecoupe, foreman, the following facts were revealed.

a) There was no fire underground.

b) The power was on and the regular alarm system was operational.

c) The back-up radio communication system was present in the event of power outage.

Considering the above facts, the writer concluded that these did not appear to be a refusal to work condition as described under Section 23 of the Act.

It is the employer's responsibility to provide the procedures and the alarm system required by Sect. 23 of the Mining Regulations.

The report of each fire alarm test of the procedures mentioned in Sect. 23(5) of the Mining Regulations shall be sent to an engineer of the Ministry.

Recommendations

The writer recommends that the back-up fire alarm system be tested and improved if found necessary.
The joint Health and Safety Committee be involved in the procedures and design of the fire alarm systems.

Note: Item c) was communicated verbally to the workers on Nov. 29/87.

At no material time was an inspection carried out by either the respondent or an inspector. Since the refusals, it appears that some employees have continued to go to the refuge stations when the power has failed without repercussions. However, the power system has been modified so that localized power failures are much less frequent.
Mr. Casey's concerns about the contingency plan were as follows. The overloading of the electrical transformers which was causing the power failures presented a two-fold problem. Mr. Casey was concerned that the overloading might lead to both a fire and a power failure simultaneously. He was also concerned that the history of small fires and the frequency of the power failures made it all the more important that a plan was adequate. Mr. Casey uses the pager system at least once a night, and he told the Board that frequently the pager telephones do not work at all, or communication is garbled. He was also concerned about the role assigned to the dump point operator in trying to find employees. To walk all the way around the headings to notify employees would take ten to fifteen minutes, which in his view would amount to a dangerous delay in the event of a fire, both for employees located towards the end of this tour and for the dump point operator. A delay of this length could well cut an employee off from an escape route depending on the location, direction and size of the fire.
Mr. Chapman described his concerns in the following manner. As one of the shift health and safety representatives, Mr. Chapman was required to make out joint reports with the foreman on any fires which occurred, and so he was aware of the number of fires which had occurred prior to these events. In addition, a fire in a mine can rapidly deplete the usable air supply because of attendant smoke, gases and fumes. The nature of Mr. Chapman's work meant that he might be in any one of twenty different work areas during a shift, and it would be difficult for the dump point operator to find him. If one of the transformers blew up as a result of overloading, there would be no fire alarm, and if a fire was heading in the crew's direction, the surface attendant would not know of it unless someone below discovered the fire and reported it to him by pager telephone. Mr. Chapman was particularly apprehensive because of a newspaper report which he had read several months previously of a fire in a similarly constructed mine in Ontario where two workers had died because they were unable to reach a refuge station in time. He also testified that he had experienced problems with the pager telephone not working the night before these events.
Ronald Murphy's concerns were in part based on his experience as a dump point operator. He used the pager telephone some five to ten times per shift, and related to the Board a number of ongoing problems with either the transmitter or receiver not working properly. In this regard, he described a pattern where the telephones would fail to work properly two to three times in one shift. Repairs would be effected and the telephones would work well for a couple of days, and then break down again. Mr. Murphy was also very concerned about the aspect of the contingency plan in which he, as the dump point operator, would have to locate men in the headings if there was an emergency. Mr. Murphy had not been in the headings at all for over a year on November 29th, 1987, and it was not disputed that the headings changed constantly as work progressed. He would have to walk around the headings as well, a slower process, since the evidence indicated that the mobile machinery cannot be used when ventilation fans stop because of fumes. It was apparent that Mr. Murphy had been concerned about the transformers overloading for some time previously, and he was particularly disturbed that in his view, untrained employees were resetting the breakers, a job which required an electrician above ground. He had spoken to an electrician (not employed by the respondent) who had advised him that the transformers, which carry 2400 volts, might explode if the resetting of a breaker caused a spark to ignite smoke from a short in the wires. Mr. Murphy had raised this problem before with Mr. Lecoupe, and had himself refused to reset the breakers, without repercussions from management. Even the smoke alone from the overloaded transformers might cause problems in Mr. Murphy's view. He advised the Board that he had been given mine rescue training by the respondent, in the course of which he had become aware of the explosive properties of smoke and the small amounts of toxic smoke that might kill a person in the limited air supply of a mine. There are transformers both downwind and upwind of the area in which the crew was working.
Sections 23 and 24 of the O.H.S.A. 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 prompt]Iy 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

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;

(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 (I) 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.

In Inco Metal Co., [1980] OLRB Rep. July 981, the Board in considering the predecessor to these sections said that it "must interpret and apply the Act bearing 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".
Similarly, the Board observed in The Corporation of the City of Toronto, [1986] 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 resolving 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 lnc.,[1985] OLRB Rep. Oct. 1431):

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.

The Board has held that the reasonableness of an employee's belief may be affected by an inspector's decision. (Auto Jobbers Warehouse Ltd., [1981] OLRB Rep. Dec. 1715.) In this regard, the Board has noted that an employee is entitled to continue to refuse to work even after an inspector's report declares the workplace to be safe as long as he continues to have reasonable grounds to do so. However, a worker who refuses to work where there has been an investigation and a decision by a neutral expert that the work is safe faces an increasing onus with respect to the reasonableness of his or her position (see Canadian Gypsum Construction, [1978] OLRB Rep. Oct. 897). That onus is still subject to the general burden of proof that the employer bears under section 24 (see The Corporation of the City of Toronto, supra).
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., [1982] OLRB Rep. Apr. 580, and Wilco Canada Inc., [1983] OLRB Rep. Oct. 1759 in this regard.

At the commencement of the hearing, a preliminary issue was raised with respect to the subpoenaing of Marcel Djivre by the respondent. Counsel for Mr. Djivre submitted that he was not a compellable witness as a result of section 34(2) of the Occupational Health and Safety Act. That section reads as follows:

34.-(2) An inspector or a person who, at the request of an inspector, accompanies an inspector, or a person who makes an examination, test, inquiry or takes samples at the request of an inspector, is not a compellable witness in a civil suit or any proceeding, except an inquest under the Coroners Act, respecting any information, material, statement or test acquired, furnished, obtained, made or received under this Act or the regulations.

There was no dispute that Mr. Djivre had been duly served with the respondent's subpoena. While section 34(2) stipulates that an inspector is not compellable, it does not say that he or she is not competent in the legal sense to testify as a witness. However, counsel for Mr. Djivre made it clear that he was not prepared to volunteer testimony for the policy reasons described below, and thus it was his compellability which was at issue.
The respondent was initially of the view that Mr. Djivre was not an Occupational Health and Safety inspector at all, but rather an Area Engineer for the Mining Health and Safety Branch of the Ministry of Labour. Upon production of Mr. Djivre's certificate of appointment as an inspector under the O.H.S.A., the respondent took the position that he had not been acting in that capacity at the time of his involvement in the events at issue, but rather in the advisory capacity of an Area Engineer, and thus he was not protected by section 34(2). Counsel for Mr. Djivre and the complainants argued that the provision of advice was a significant portion of ~n inspector's duties and that the respondent's characterization of an inspector's role was too narrow. The Board then ruled orally as follows:

The respondent in this case argues that Mr. Djivre was not acting in his capacity as an inspector in regard to certain events and that the respondent is entitled to call him as a witness with respect to those events, despite the existence of section 34(2) of the Occupational Health and Safety Act. Section 34(2) does not differentiate between an inspector who is acting in his or her capacity as an inspector and one who is not.

There are three elements to section 34(2) which would allow a duly subpoenaed witness to qualify for an exemption:

(1) He or she must be an inspector, or a person who accompanies him or her, or does certain things at the inspector's request;

(2) The proceedings must be a civil suit or any "proceeding";

(3) The evidence for which he or she was subpoenaed must be in respect of any information, material, statement or test acquired, furnished, obtained, made or received under the Occupational Health and Safety Act or regulations.

It is now common ground that Mr. Djivre is an inspector. The cases of General Motors of Canada Limited, [1985] OLRB Rep. Feb. 262, and [1984] OLRB Rep. Mar. 459 make it clear that an inquiry into a complaint under section 24 of the Occupational Health and Safety Act by the Ontario Labour Relations Board is a "proceeding" within the meaning of section 34. If there is a dispute with respect to whether the evidence the respondent wishes to adduce falls within the last condition of section 34(2) we are prepared to hear and determine that dispute. We are not prepared to entertain evidence on whether Mr. Djivre was or was not acting in his capacity as an inspector, as in our view, that is the wrong question to be answered with respect to this preliminary issue.

Counsel for the respondent then advised the Board that he wished to call evidence to show that the evidence for which Mr. Djivre was subpoenaed was not in respect of any information, material, statement or test acquired, furnished, obtained, made or received under the Occupational Health and Safety Act or regulations. However, to establish that proposition, counsel wished to call Mr. Djivre as a witness. The Board then ruled orally as follows:

We are not prepared to allow the respondent to call Mr. I)jivre to adduce evidence directed at whether Mr. Djivre is a compellable witness or not. The respondent has indicated he can address this evidence through other witnesses, and to allow the respondent to call Mr. Djivre in this manner would undermine the purpose of section 34(2).

The Board then heard the other evidence adduced by the respondent with respect to the nature of Mr. Djivre's involvement in the events which form the subject of these complaints and ruled as follows:

We find that Marcel Djivre is not a compellable witness in these proceedings by virtue of section 34(2). Our reasons will follow at a later date.

We now provide our reasons.

The Board has observed previously that there are sound policy reasons for giving section 34(2) a liberal construction. In General Motors of Canada Limited, [1985] OLRB Rep. Feb. 262, the Board said as follows:

As noted in our earlier ruling, if an inspector is to be able to perform his important functions under the Act, he must be able to freely obtain information from persons in the workplace and carry out his other tasks in a context in which neither he nor the persons with whom he speaks or interacts will feel constrained by the possibility that he may subsequently be compelled to testify at the instance of one of the parties to proceedings such as a complaint under section 24 of the Act. Moreover, as submitted by Mr. Rolph, the protection provided by section 34(2) of the Act ensures that the inspector's position as a neutral investigator and decision-maker will not be tarnished by the appearance of partisanship which could result if he were required to testify at the behest of an employee, an employer, or a union, in a civil suit or administrative proceeding, such as the present complaint, respecting any information, material, statement or test acquired, furnished, obtained, made or received under the Act or the regulations. Thus, we are of the view that the interpretation that we have placed on section 34(2) in our previous ruling and in the present ruling is the type of "fair, large and liberal construction or interpretation" mandated by section 10 of the Interpretation Act and best suited to attaining the object of the Act according to its true intent, meaning, and spirit.

In this case, the essence of the respondent's argument is that Mr. Djivre was not carrying out an inspector's formal functions under section 23 at the time of his various discussions with the parties, and was therefore not protected by section 34(2). We do not find this particularly persuasive. Section 34(2) on its face is not restricted to those duties performed by an inspector under section 23. Rather, it is broadly drafted to encompass, among other things "any information.., acquired. . .under this Act or the regulations." The evidence before us was that Mr. Dickie initiated contact with Mr. Djivre by calling the Mining Health and Safety Branch. His call was prompted by Mr. Allen's call indicating that an inspection would be forthcoming, and it was clearly an attempt to forestall that inspection, at least until the JOHSC had had a chance to discuss the problem. Mr. Dickie also agreed that he was attempting to obtain Ministry of Labour approval for the respondent's contingency plan and that he and Mr. Djivre compared the plan to the mining regulations under the O.H.S.A. In addition, Mr. Dickie agreed that he anticipated the possibility of further work refusals, and it was apparent that he wished to obtain an official view of the validity of those refusals in advance.
Mr. Djivre's conversations with Mr. Booker and Mr. Lecoupe on November 29th were occasioned by the work refusal, and the latter was suggested by Mr. Dickie for the purpose of persuading employees to abandon their refusal. Mr. Djivre's discussion with Mr. Dickie on November 30th once again related to what Mr. Dickie had done and should do in the aftermath of the refusals in light of the respondent's obligations under the Act and regulations. On his visit to the plant on December 4th he issued a report which is titled Ontario Ministry of Labour, Mining Health and Safety Branch, Report. At the bottom of the report there is a statement which reads "[t]ake notice that you are required under the Occupational Health and Safety Act, to post a copy of this report in a conspicuous place."
In our view, evidence with respect to these activities is information acquired under the aegis of the O.H.S.A. Keeping in mind the purpose of section 34(2) and the fair, large and liberal construction that it should receive, we do not think it is necessary for a person claiming the protection of section 34(2) to point to a specific section of the O.H.S.A. authorizing his or her activities before such protection will be extended. It makes little sense in terms of the policy implications of section 34(2) to hold that an inspector's evidence with respect to a formal investigation is beyond the reach of a subpoena but his or her evidence in regard to informal advice or consultation is not. The information which the respondent wished to adduce through Mr. Djivre was closely linked to the respondent's and complainants' respective rights and obligations under the Act and regulations, and to a sequence of events in which the parties were purporting to assert those rights or perform those obligations. While we do not suggest that this is an exhaustive or definitive test with respect to evidence falling under section 34(2), in our view it is at least sufficient to invoke its protection. We find confirmation for this view in General Motors, supra, where the complainants sought to compel an inspector to testify with respect to a number of events surrounding an investigation under section 23, including communications with the complainants after he had completed his formal functions and had delivered his report. The Board found that the evidence directed at these latter communications fell within the protection offered by section 34(2).
We note however, that under section 34(2), the information, material and so forth enumerated therein is not itself subject to restrictions on admissibility. In this regard section 34(2) may be compared usefully to section 111(1) of the Labour Relations Act which provides that certain material cannot be revealed except with the consent of the Board. In other words, the information itself is not confidential or protected, but only the compellability of an inspector to testify about it. As a result, we allowed the admission of evidence from other persons relating to what the inspector said and did, over the objection of Mr. Djivre's counsel.
We did so for two reasons. First, the evidence was otherwise highly relevant to the issues before us. In this regard we note in particular the increasing onus described above which is inseparable from the activities of the inspector. Second, while we are cognizant of the need to interpret section 34(2) so as to give effect to its purpose, at the same time it is important not to place such a widely- drawn construction upon it that it interferes any more than is necessary with the Board's function of ascertaining the facts of the case. Counsel for Mr. Djivre objected on the basis that admission of such evidence, whether or not it was specifically exempted in section 34(2), would have the effect of diluting its impact. We acknowledge that this may well be so. At the same time it is vital to the Board's ability to adjudicate a matter properly to have as unrestricted and accurate a view of the facts as is possible. In our view, our ruling provided an appropriate balance between the policy reasons for section 34(2) and both the Board's general obligation to accept relevant evidence and the importance of this evidence to the issues before us.
One further caveat with respect to this evidence; it will be readily apparent that testimony by another with respect to what an inspector has said is subject to a number of weaknesses, not the least of which is that it is hearsay, and the originator of the statement has not been subjected to examination. In addition, evidence with respect to the conversations with both Mr. Djivre and Mr. Allen was given after our ruling, when witnesses were aware that they were in no danger of being contradicted by an inspector. We took these factors into account in assessing the weight to be accorded to this evidence.
Turning to the facts of this case, we must first determine whether the complainants had "reason to believe" the workplace was unsafe within the meaning of section 23(3). We have little difficulty in concluding that this subjective test has been met. There had been a series of both small fires and power failures prior to these events and it had been demonstrated that the fire alarm system did not operate during a power failure. In these circumstances, it was not disputed that some auxiliary plan or system was required. The concept presented to the JOHSC meeting was hastily conceived of by Mr. Frost and Mr. Dickie to respond to what was obviously a labour relations problem of some urgency. The concerns raised by the complainants were sincere, and on the basis of the evidence before us, were not without merit. After reviewing the concerns at some length, we conclude that the complainants had reason to believe that the physical condition of the workplace was likely to endanger them within the meaning of section 23(3).
We have some doubt as to whether the respondent's actions on the evening of November 29th amounted to the kind of investigation which would trigger the objective test set out in section 23(6). However, it is not necessary for us to decide this issue as in any event we conclude that the objective test under section 23(6) has been met for the same reasons described above. Having reviewed all the circumstances including the frequency of fires and power failures, the possible consequences to employees, the difference in the characteristics of the refuge station and the dump point and the nature of the complainants' concerns, we conclude that the complainants had reasonable grounds to believe that the physical condition of the workplace was likely to endanger themselves.
With respect to the complainants' concerns, the respondent argued that the dump point operator could also use the scoop tram operators to locate workers in the headings. However, this was not part of the plan that was either set out at the JOHSC meeting or put to the crew on the evening of November 29th. In addition, it conflicts with testimony that mobile equipment is not used during a power failure because of the danger of fumes while the ventilation fans are not operating.
In a later description of the plan Mr. Frost described the first call to the sufface as also verifying that the pager telephones were working. Mr. Lecoupe was of the view that if the pager telephone was not working at the dump point, "common sense" would tell workers to proceed to a refuge station. However, he agreed that this was not suggested to the crew at the time in question, and this argument ignores the fact that the complainants' common sense was telling them to go to a refuge station immediately, a course of action which the respondent vetoed. There was nothing in the way the plan was presented to employees that suggested that they should exercise their own discretion and judgement at any point in the procedure; in fact, the circumstances and the conduct of the respondent indicated that the exercise of their own judgement was distinctly unwelcome.
The respondent also argued that the refusals were based on a hypothetical state of affairs, and points out that there was no fire or power failure at the time of the complainants' refusals. We find this an unpersuasive argument for two reasons. Firstly, many work refusals anticipate the possibility of accidents or other breakdowns before they occur, and section 23 appears to contemplate that possibility. It would be nonsensical for the Board to conclude that the refusals were unprotected simply because the feared events had not yet come to pass. Rather, the Board's function is to assess the reasonableness of that anticipation in light of the facts before it. In this assessment, a test which poses a division of cases into hypothetical and non-hypothetical is not useful.
Secondly, this argument suggests that a fire or power failure or both would have to be in effect before the complainants could refuse to work. This ignores the fact that the purpose of a fire alarm is to sound an early warning to those within its range of a fire of which they might not otherwise be aware. Even where the possibility of a fire may be relatively remote, fire alarms are installed because the impact of a fire is often life-threatening, and its occurrence unpredictable. Where, as in a mine, the effect of a fire may be even more deadly because of limitations on the air supply and means of escape, that concern is compounded. To suggest that the complainants could not refuse to work until the moment of a fire or power failure involves a misapprehension with respect to the purposes of both the fire alarm system and the contingency plan. The complainants' concern was that by the time a fire had occurred, it might well be too late.
We now turn to whether the complainants were entitled to continue to refuse to work after being informed by Mr. Lecoupe that the Ministry of Labour approved the plan, and after Mr. Booker's telephone conversation with Mr. Djivre. The source of the increased onus following upon an inspector's report is described as follows in Canadian Gypsum, supra:

An employee who continues to refuse to work in the face of on investigation and a decision by a neutral expert that these conditions do not exist must meet the substantial onus of establishing that he has reasonable cause to believe otherwise and is entitled to the protections of the Act.

[emphasis added]

Part of our difficulty in assessing the impact of Mr. Djivre's communications is that they do not fit neatly into the scheme of section 23 which appears to contemplate an investigation and a decision in writing by an inspector on the spot at the time of the refusal delivered directly to the parties (see sections 23(7), (8), (9), (10), (11) and (12)). We are also at somewhat of a disadvantage in considering the effect of the telephone conversation between Mr. Djivre and Mr. Booker because we have no evidence with respect to what Mr. Djivre said. However, to take the respondent's case at its highest, we are prepared to assume firstly that Mr. Lecoupe's indirect conveyance of Mr. Djivre's views should have the same impact as a direct statement by Mr. Djivre, and that secondly, Mr. Djivre told Mr. Booker that the Ministry of Labour had approved the respondent's contingency plan and that there was no basis for a work refusal. In the face of these assumptions, we still have considerable doubt as to whether the reasonableness of the complainants' position was called into question. We note firstly that the complainants had received, directly or indirectly, conflicting views from two different inspectors. In addition, both the opinions of Mr. Allen and Mr. Djivre were formed without consulting one of the parties and neither conducted an on-site investigation prior to forming their opinions, although both planned to attend at the workplace at some later point. While we do not doubt the general expertise of either Mr. Allen or Mr. Djivre, it is evident that the lack of an on-site investigation would have an impact on the deployment of that expertise with respect to the circumstances of this case. The evidence was that Mr. Allen was newly assigned to the plant and had not visited it before providing his opinion over the telephone. While Mr. Djivre may have been in the mine previously, it was apparent that he was sufficiently unfamiliar with it to ask Mr. Dickie to describe its basic layout on November 30th, 1987, the day following the refusals and Mr. Djivre's conversation with Mr. Booker.
The Board has observed previously that the onus will not increase where there has been no meaningful investigation (see Atao Jobbers Warehouse Limited, [1981] OLRB Rep. Dec. 1715). We note as well the respondent's earlier position that Mr. Djivre was not performing the formal functions of an inspector under section 23. We conclude that the circumstances described above militate against the effect the communication of Mr. Djivre's views either to Mr. Booker or by Mr. Lecoupe might otherwise have had. In our view, the conditions which might increase the onus upon the complainants have not been met.
Mr. Djivre's subsequent report is not particularly helpful in this regard. As noted earlier, it is not necessary that employees be proven correct in their views with respect to whether the workplace is unsafe, but only that they have reasonable grounds for their views in light of the knowledge they had or could reasonably be expected to have had at the time. (Inco, supra). In addition, it was delivered some five days after the work refusals, without an inspection and without ascertaining the concerns of employees. Even assuming, without finding, that it might shed some light on the reasonableness of the refusals, it is in any event somewhat ambiguous. One of its recommendations is that the back-up fire alarm system (the contingency plan) be tested and improved if found necessary. This suggests that there were some lingering doubt as to the efficacy of the plan. Moreover, the report concludes that "there did not appear to be a refusal to work condition as described under section 23 of the Act [sic]" which we understand to mean employees were not entitled to refuse to work. However, in his letter of December 6th, 1987 Mr. Djivre states as follows:

This suggests both that the details of the plan had not yet been resolved, and that in the interim workers would be permitted to go to the refuge station when there is a power failure. This latter point is precisely the position taken by the complainants which lead to their work refusals. Thus, even if we were to accept that the report should play some role in assessing the reasonableness of the complainants' refusals, it suggests some support for their position. We also have some doubts as to the role an inspector's conclusions with respect to whether the work refusals meet the conditions of section 23 should play (as opposed to his views in regard to the safety of the workplace), given that that is the central question to be answered by the Board in this case. We conclude that the complainants were entitled to continue to refuse to work despite Mr. Djivre's telephone conversations, report, and other involvement.
The respondent also argued that the complainants' actions were taken as a result of ulterior motives, that is, to reinforce their rejection of the contingency plan at the JOHSC meeting, rather than out of a sincere concern for their own safety. We do not find these propositions mutually exclusive. The issue was raised at the JOHSC meeting at the respondent's initiative as a result of the prior work refusals. The employee representatives' rejection of the contingency plan at that meeting was for the same reasons which prompted the work refusals, that is, that they believed that the contingency plan was unsafe. There is no doubt that at least Mr. Casey and Mr. Chapman were frustrated by what they felt was the respondent's refusal to take their concerns seriously and by the decision to act unilaterally when the JOHSC could not reach agreement. At the same time it was also clear that the respondent perceived the dispute largely in terms of control of the workplace, rather than as a legitimate health and safety issue. In part, this dynamic stems from the juxtaposition of the joint responsibilities and obligations under the O.H.S.A. with a workplace structure characterized by a general requirement of obedience from employees. Under section 23, employees have the right to act in a manner which might otherwise be considered insubordination. In this regard, the Board made these comments in General Motors of Canada Limited, [1980] OLRB Rep. May 700:

We do not reach this conclusion lightly for the rights guaranteed by Bill 139 are critically important to all employees. The concept of insubordination is singularly inappropriate in situations where an employee is refusing to work in an honest (although mistaken) belief that his health or safety may be threatened. We accept the view, so accurately expressed by Doke, that in such matters one should err on the side of caution and prudence. An emptoyee should not be penalized for doing so, nor should this Board be unduly concerned if bona fide concerns for employees safety result in occasional disruptions of the employer's production process....

This tension between a joint responsibility scheme and the general workplace rule requiring an employee to obey first and grieve later is compounded by two other factors. First, work refusals are more commonly associated with the kind of economic pressure which is normally prohibited during the term of a collective agreement. Thus the use of that right in another context is likely to make management officials apprehensive and wary. Secondly, there are limitations on the role of the JOHSC which mean that it is not surprising that an impasse there may spill over into the activities contemplated by section 23. The events before us were undoubtedly coloured by these elements. This does not in itself suggest to us that the complainants' work refusals were less than bona fide, or that they did not meet the requirements of section 23. Rather, it confirms the difficulty of isolating events from the legal and social context of the workplace.

These structural dynamics which may complicate genuine health and safety concerns must be distinguished from a case where a complainant is not motivated by health and safety concerns at all. For example, Cooper Company Limited, [1981] OLRB Rep. Aug. 1113 provides some contrast to the case before us. There the Board, while noting that it should be slow to conclude that complainants are not sincerely motivated in health and safety matters, found that it was satisfied that the complainant was motivated by a desire to disrupt the respondent's job project rather than health and safety considerations:
In light of the importance of health and safety matters, one should be extremely reluctant to conclude that an employee who claims to have been acting out of health and safety concerns was in fact motivated by other considerations. Any serious doubts about the truth of the matter should be resolved in favour of the employee. In the instant case, however, we are fully satisfied that Mr. Varty's conduct was not motivated by any health and safety considerations but rather by a desire to continue to disrupt the respondent's job project, and that the method he chose to do so was by raising a false health and safety issue.

In this case, the existence of accompanying dynamics does not negate the complainants' original concerns.

The respondent also argued that it may not be economically viable for an employer to make the workplace safer. Even if we were to accept the dubious proposition that employees' health or safety can be legitimately endangered for economic reasons, in our view this is beyond the scope of the Board's inquiry. Our task in this case is to determine whether the complainants were disciplined or suspended because they acted in compliance with the Act or sought its enforcement. This also requires us to determine whether they had reasonable grounds for this work refusal under section 23(6). While our conclusions in this regard may have some implications for the safety of this workplace, it is neither necessary nor advisable for us to embark upon a more general consideration of the merits of the parties' respective positions on safety requirements (see Commonwealth Construction Company, [1987] OLRB Rep. July 961).
Similarly, we recognize that occupations differ with respect to risks to employees and that even at its best, a mine may be less safe than other workplaces. At the same time we reject the notion that by working in such a workplace an employee cannot later be heard to complain of danger. This proposition, which appears to be related to either the maxim "volenti non fit injuria" ("he who consents cannot receive an injury") or to a form of estoppel, is not applicable to these circumstances. Regardless of the inherent risks of their occupations, employees are entitled to insist that their workplace be made as safe as is reasonably possible, and to resort to work refusals when the conditions of section 23 have been met. To hold otherwise would be contrary to the remedial purposes of the O.H.S.A., and would raise a number of probably unanswerable questions with respect to the choice of jobs available to employees and so forth.
In the same vein, it was apparent that some of the complainants' concerns, particularly those of Mr. Murphy, had existed for some time prior to November 29th. While this might be a fact which affects credibility in other circumstances, here the discovery that the fire alarm did not function during a power failure appeared to be in the nature of a last straw for the complainants. We are of the view that employees who have lived with one degree of risk are entitled to refuse a higher degree or to insist that that risk be minimized, providing, of course, that any refusal to work in this regard otherwise fits within section 23. Indeed, it might well be that in a workplace which is less safe to begin with, lesser circumstances might provide reasonable grounds for a work refusal because the margin of safety is already so slim.
The respondent also argued that the plan which prompted the work refusals was not a piece of equipment, a machine, a device or a thing within the meaning of sections 23(4)(a) and 23(6)(a), nor the physical condition of the workplace as set out in sections 23(4)(b) and 23(6)(b). (It was not argued by the complainants that the respondent was in violation of the mining regulations with reference to sections 23(4)(c) and 23(6)(c).) However, the Board has given a broad interpretation to the word "workplace" in section 23. In Firestone Canada Inc., [1985] OLRB Rep. July 1044 the Board found that the motion of throwing tread on a platform was included within the definition of "workplace" and that a worker was exercising his rights under section 23 in refusing to perform the motion. In this context, we conclude that the complainants' concerns with respect to the contingency plan related to the physical condition of the workplace inasmuch as they involved the effect of a fire on the safe egress or refuge of employees, the safety of the air supply, and so forth.
Counsel for the respondent also argued that his client had no "anti-safety animus". Whatever that phrase may mean, we do not think it is an element required by section 24. The complainants were disciplined by the respondent because of their work refusals, refusals which we have found to be in compliance with the O.H.S.A. In Firestone, supra, the Board noted that a more specific intention on the part of an employer is unnecessary:
This brings us to the most perplexing part of the present case. On the one hand, we are prepared to find that Mr. Lunn had reason to believe that the work was unsafe. However, we are also of the view that the employer did not have intent to discipline Mr. Lunn because Mr. Lunn was exercising a right under the Act. Rather, the respondent was applying its regular policy with respect to employees assigned to perform a certain task. That there was no such specific intention by the employer to discriminate against Mr. Lunn is not a defence under section 24 of the Act once it is found that the employee was acting within the scope of his rights under the Act. The employer understood what Mr. Lunn was saying and chose not to believe him. Although the employer refused in good faith to believe Mr. Lunn's concern, the net result was that Mr. Lunn was deprived of two days employment because he exercised a right under the Act.

[original emphasis]

At the same time we reject the complainants' contention that the respondent did not consider the safety of employees at all in the development of the contingency plan. While safety was not a factor enumerated by Mr. Frost in explaining how the plan was developed, the respondent's concern for safety was implied by the very existence of the plan.

Although both parties made arguments in this regard, we do not think that the fact that most employees originally refused to work or that the three complainants were the only employees to continue to refuse to work after the threat of discipline is particularly telling, one way or another. Employees may have many individual reasons for refusing or not refusing to work, and the variation in those reasons will be amplified by the introduction of another element such as the threat of discipline.
For all these reasons, the majority of the Board concluded that the respondent had violated section 24 of the O.H.S.A. and delivered an oral decision to this effect at the end of the hearings in this matter, with reasons and remedy to follow.
Turning to the question of remedy, the respondent also argued that the complainants had not been disciplined but merely sent home on November 29, 1988. The disciplinary letters they received cited suspensions for periods subsequent to November 29th. As a result, the respondent argued that they should not be compensated for their losses on November 29th. We do not agree. The complainants were sent home because of their work refusals. The effect was to deprive them of earnings they would otherwise have received. There was no suggestion the respondent had attempted to find other work for them without success. On the evidence before us, it is clear that the respondent's actions in sending the complainants home on November 29th were intended in part to penalize them for their work refusals which the respondent viewed as frivolous and insubordinate.
We therefore direct that the respondent compensate the complainants for all losses suffered as a result of the work refusals, together with interest in accordance with the Board's Practice Note No. 13.
We have not addressed the respondent's threat of discipline to the other employees who initially refused to work as that was not the subject of any of these complaints.

DECISION OF BOARD MEMBER D.G. WOZNIAK; August 5,1988

I dissent, in part, from the majority decision.
The facts as stated in the majority decision are essentially correct and therefore it is not necessary to repeat them. However, it is with the interpretation of the facts and events that I differ from the majority.
I have no difficulty with the majority decision up to the point where they consider the evidence and rule on the tests required under sections 23(3) and (6) of the Occupational Health and Safety Act. In my opinion, after a careful review of the evidence and considering in particular the testimony of the complainants I came to the opposite conclusion. The testimony of the complainants that they had "reason to believe" or "reasonable cause to believe" that conditions in the mine would endanger them was flat and unconvincing. A simple statement by an individual that he was afraid unsupported by any other indications is not sufficient to indicate a genuine fear. One complainant did embellish his concern by referring to a newspaper report on a similar incident where several miners perish in a mine fire but he was vague about the circumstances and was unable to state when or where the incident occurred.
Accordingly, for these reasons, I would dismiss the complaints.