Terry Bearman & United Electrical Radio & Machine Workers of Canada, Local 520 v. Boston Insulated Wire and Cable Co.
[1990] OLRB Rep. December 1235
1625-90-OH Terry Bearman & United Electrical Radio & Machine Workers of Canada, Local 520, Complainant v. Boston Insulated Wire and Cable Co., Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.
APPEARANCES: Ralph M. Currie and Steve Farkas for the applicant; A. D. G. Purdy and Dennis M. Olexiuk for the respondent.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE: December 18, 1990
This is a complaint under section 24 of the Occupational Health and Safety Act. Upon hearing the evidence and representations of the parties at a hearing held on November 22, 1990, the Board ruled, orally, that the respondent had treated the complainant Terry Bearman in a manner contrary to the provisions of the Act. The Board ordered the respondent to forthwith reimburse Bearman for all wages and benefits he had lost as a result of its unlawful conduct.
The material facts are relatively straightforward. Bearman has been employed by the respondent for approximately four years. For the last three years, he has been a strander operator. On June 4,1990, Bearman was occupied completing an order on his stranding machine (one of two which he normally operates) when William (Bill) Herman, the respondent's General Foreman, instructed him to go outside, get a wheelbarrow, and fill up holes in the plant parking lot with gravel. Bearman had completed two wheelbarrow loads when Herman approached him again a short time later. Herman was not satisfied with the amount of gravel that Bearman was loading into the wheelbarrow and instructed to put more gravel in it. Bearman responded that he would not put more gravel in the wheelbarrow because "the wheelbarrow and terrain were not the best" and he might hurt himself if he did. Bearman sought the assistance of his union steward. Herman, Bearman and the steward went to the shipping/ receiving area where the wheelbarrow was weighed, first with the gravel in it and then empty. Herman then said he felt too frustrated to deal with the situation at the time and that it would be dealt with after lunch. There was in fact no further discussion or other investigation but Bearman was sent home by Herman after lunch. In the result, Bearman lost three and a half hours in wages and benefits.
Subsection 24(1) of the Occupational Health and Safety Act provides that:
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.
The purpose of the Occupational Health and Safety Act is to promote safety in the workplace and protect employee prudence in that respect, while, at the same time, providing a process for resolving health and safety concerns. If the Occupational Health and Safety Act is to mean anything, it must be properly used and enforced (The Corporation of the City of Toronto, [1986] OLRB Rep. Dec. 1834, International Harvester Company of Canada Limited, [1983] OLRB Rep. June 898, Inco Metal Seal, [1980] OLRB Rep. July 981).
- The dispute between the parties in this case in two-fold:
(a) whether Bearman's refusal to perform the work as instructed was protected by the Occupational Health and Safety Act; and
(b) if so, whether Bearman was penalized by the respondent for exercising his rights under the Occupational Health and Safety Act.
The respondent argued that Bearman did not express his safety concerns in a timely manner, that his complaint is frivolous and an abuse of the Act, that he was not, in any event, penalized by the respondent.
An employee need not cite chapter and verse, of the Occupational Health and Safety Act in order to avail him/herself of its protections. On the evidence before the Board, it was clear that Bearman did not refuse to do the work he had been instructed to perform by Herman. What he did refuse to do was to put more gravel in the wheelbarrow. It is also clear that he immediately cited a concern that he might hurt himself as the reason for his refusal.
Herman obviously understood that and it was somewhat disingenuous for the respondent to suggest otherwise. Herman himself admitted that he felt "threatened" by Bearman's statement that he might hurt himself. Because he "didn't need an injured employee around" (to use his words), he sent Bearman home for the afternoon. There is no doubt that Herman's action was a direct response to Bearman's refusal to perform the work in question in the manner which Bear-man considered to be unsafe.
Herman admitted that he has only a passing familiarity with the provisions of the Occupational Health and Safety Act. For example, he had no real idea of the kind of investigation which the Act contemplates will be performed in circumstances where an employees refuses to perform work for safety reasons. Further, he seemed to draw an insupportable distinction between safety related work refusals inside the plant itself and those, as in this case, outside the plant. It is unacceptable that a person in Herman's position be so ignorant of the provisions of the Act and that he show so little appreciation of the purpose of the legislation. Such ignorance, and the potential for abuse to which the Board must also remain vigilent, tend to undermine health and safety in the workplace and have a negative impact on labour relations.
There was nothing in the evidence which suggested that Bearman's refusal to perform the work as instructed by Herman was motivated by anything other than a real concern for his own safety. Neither Herman nor anyone else on behalf of the respondent did any investigation even remotely resembling that contemplated by section 23 of the Occupational Health and Safety Act. The only explanation offered by Herman for his response was that he felt "frustrated" and threatened by Bearman's refusal. If we are to accept his assertion that Bearman was engaged in a "make work" project, why would it be important to him that Bearman perform the work in the manner Herman wanted him to, which he presumably felt would have resulted in the work being completed more quickly? We prefer the evidence of the Bearman who testified that he was in the process of filling an order on his stranding machine when he was instructed by Herman to perform the outdoor work in question here and that he completed that order on the following day when he returned to work. Berman's version is more consistent with Herman's apparent desire that Beasman finish the outdoor work more quickly, presumably so that he could return to the order on his strander. Further, there was no cogent evidence to support the respondent's assertion that there was no other work for Bearman to do. (Indeed, even Herman admitted that he could have found other work for Bearman.) Finally, we discerned no threat to Herman.
In the circumstances, it was difficult to see how Herman's response could be characterized as being anything other than a half day (three and a half hour) suspension which he imposed on Bearman because he refused to perform the work in question in what he considered to be an unsafe manner.
In the result, the Board was satisfied that Bearman's work refusal was for honestly held safety concerns, that the respondent failed to respond in an appropriate manner either as contemplated by section 23 of the Occupational Health and Safety Act or otherwise, and that the respondent disciplined Bearman for his safety-related work refusal contrary to subsection 24(1) of the Act. There Board therefore ordered the respondent to compensate Bearman for the wages and benefits he lost as a result of the respondent's unlawful conduct (see paragraph 1 above).
DECISION OF BOARD MEMBER R. W. PIRRIE: December 18, 1990
I concur with the majority that section 24 of the Occupational Health and Safety Act was violated by the employer in that Mr. Herman did not follow section 23 of the Act when Mr. Bear-man expressed concern that he might hurt himself if he were to place more gravel in the wheelbarrow. Consequently, I also concur that Mr. Bearman should be compensated for the lost pay and benefits as a result of being sent home by Mr. Herman.
I am also troubled that Mr. Herman was not more knowledgeable about the appropriate provisions of the Occupational Health and Safety Act. Had he been, and had he extended as much effort in following the procedures laid out in section 23(3), (4) and (5) of the Act as he did in initially weighing the wheelbarrow and its contents and conducting his subsequent tests to establish the effort which would have been required by Mr. Bearman to move it, this event likely would have ended at the time.
That said I am not satisfied Mr. Bearman was entirely genuine when he expressed his concern that he might injure himself if he followed Mr. Herman's direction to place more gravel in the wheelbarrow. Based on the employer's evidence as to the weight of the wheelbarrow and gravel and the effort required to lift it, I cannot accept that Mr. Bearman would have been at risk, regardless of the terrain. His refusal, in my opinion, amounted to a borderline use of the Act.
The Occupational Health and Safety Act must be used for its intended purpose, and not to further some other unrelated agenda. Ignorance on the part of employers and abuse on the part of employees undermine the value of the legislation and tend to have a negative impact on labour relations.