[1990] OLRB Rep. October 1078

2096-89-OH Steve Mike Szeghalmi, Complainant v. National Plastic Profiles Inc., Respondent

BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Rundle and P. V. Grasso.

APPEARANCES: David G. Leitch and Steve Szeghalmi for the complainant; David Zimmer for the respondent.

DECISION OF M. A. NAIRN, VICE-CHAIR AND BOARD MEMBER J. A. RUNDLE; October 11, 1990

1This is a complaint alleging that the respondent violated subsection 24(1) of the Occupational Health and Safety Act (the "0. H. & S. Act") in terminating the complainant's employment. The relevant provisions of the Occupational Health and Safety Act provide as fol­lows:

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

(a) dismiss or threaten to dismiss a worker;

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

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

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

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and bind­ing settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and pro­cedure of the Board apply with all necessary modifications to the complaint.

(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.

(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.

2The complainant asserts that he was terminated because he was planning to prepare and circulate a petition requesting a lunchroom on the respondent employer's premises. Although the complainant led evidence of other concerns regarding certain health and safety matters, for exam­ple, the provision of pressure gauges, the availability of respirators, and ensuring available hot run­ning water for employees' use, he did not suggest nor seek to rely on the respondent's conduct with regard to any of these matters. The respondent was aware of the various concerns raised and had undertaken limited improvements in some areas. It appears that the complainant felt these actions to be insufficient. We are satisfied however that the respondent did not have these concerns in mind in deciding to terminate the complainant's employment. Nor, as we have indicated, did the complainant so suggest.

I

3At the end of his case, counsel for the complainant sought leave of the panel to call Mr. Punambolam, the plant manager, to testify. Because of the reverse onus provision in subsection 24(5) the respondent's case had proceeded first and this individual had been called as a witness by the respondent as part of its case. Counsel for the respondent objected to this request.

4The complainant argued that there is no rule of evidence that stipulates that a witness that has been called once cannot be called again. He argued that if a witness were to give evidence that was incomplete or inaccurate and that fact subsequently came to the attention of counsel, there would be no sound policy reason for precluding that witness from being called again to give evidence. He then went on to say that the purpose for which the witness would be called should be limited. It would not be for the purpose of merely giving evidence again but it would have to be in relation to something new.

5The panel requested and then directed that the complainant outline the nature of the evidence he was seeking to introduce. Although initially the complainant objected to doing so, he later acknowledged that it was helpful in dealing with the respondent's objection in that the panel could see that the evidence was (as he defined it) new. The respondent reviewed each of the partic­ulars provided. With the exception of paragraph 7 which appeared to be directed at why the wit­ness might have "changed his mind" with respect to his evidence, the respondent argued that each of the particulars had already been dealt with in the witness's earlier testimony. The complainant had had every opportunity to cross-examine the witness and had failed to make use of that oppor­tunity. Consequently counsel urged the Board to exercise its discretion not to hear the witness. Both parties agreed that whether or not to allow Mr. Punambolam to testify was a matter within the panel's discretion.

6Counsel for the complainant provided the following particulars:

1. Mr. P will give evidence that the problems with production on the evening of October 16, 1989 were related to technical difficulties with the extruding machine as set out in Exhibit #3, in particular, the malfunction of a cooling fan and that he so advised Jim Klassen.

2. Mr. P will testify that he overheard Luther telling Jim Klassen that Steve S. was talking to employees about their rights to a clean eating area, etc. and that Steve was circulating a petition demanding that certain requirements of the 0. H. & S. Act, as set out in the com­plaint, be respected by the employer - these conversations took place just prior to Steve's dismissal.

3. Mr. P will testify that Steve did what he was told by Mr. P and was a good employee about whom complaints of overall poor job perfor­mance could not be made.

4. Mr. P will testify that Exhibit 2 was not prepared on October 17th but some time later and that Jim Klassen told him that it was pre­pared to cover-up the real reason for Steve's dismissal.

5. Mr. P will testify that employees did not generally eat in his office due to clutter, mess and lack of chairs.

6. Mr. P will say he witnessed the incident of Mr. Klassen removing the tea kettle from his office and that he was rude about it.

7. Mr. P will testify about why he gave evidence in favour [sic] on Jan

4th when he, in fact, believed Steve to be a good worker.

7We ruled that we would hear the evidence of Mr. Punambolam with respect to the mat­ters outlined at paragraphs 4 and 7 of the particulars. Further, the witness was the complainant's witness for purposes of examination-in-chief, the respondent had the right of cross-examination on those matters and the respondent retained its right to call reply evidence. The complainant has requested our written reasons for that ruling.

8Notwithstanding that the Board has the authority to receive evidence that would not otherwise be admissible in a court of law (s. 103(2)(c)), the exercise of discretion to receive or refuse evidence must be exercised fairly and in the interests of justice. It is our view that this includes having regard to maintaining the integrity of the process.

9Assuming that the complainant has the option of calling Mr. Punambolam as a witness in his own case does not answer the concern. By seeking to call Mr. Punambolam the complainant is seeking to impugn the evidence of Mr. Klassen and Mr. Callender, two witnesses called by the respondent.

10Obviously, the panel has concerns about having the appropriate evidence before it in order to be able to reach a decision. However, the -adversarial process is such that the adjudicator must 'rely on- the parties to present the evidence within established principles designed to protect all the parties. It is the particulars outlined in paragraphs 1 and 2 that caused the panel the most seri­ous concern. There is no doubt that the evidence would be relevant to the dispute. The question however is one of ensuring that all of the parties to the process had and have a fair opportunity to present their case.

11This is a situation in our view that is analogous to the problem contemplated in Browne and Dunn, (1986), 6 R 67 (H. L.). This evidentiary principle seeks to ensure fairness to the wit­ness. Where a party intends to challenge or contradict the evidence (and inherently the credibility) of a witness by subsequently calling other evidence, the witness is to be put on notice of the apparent contradiction in order that they have the opportunity to make any explanation. Failure to cross-examine would generally be taken to indicate an acceptance of that witness's account of events. In this case there was not a complete failure to cross-examine. To the extent that questions were asked and answers given, they were clearly consistent with the witness' evidence in chief. In any given case there will be some debate as to how explicitly the witness must be advised of the intended challenge, in order to fairly allow him the opportunity for explanation. In this case we were not satisfied that in the cross-examination of Mr. Klassen or Mr. Callender their answers, and in turn their credibility, were being made the subject of challenge by the complainant. Nor is the complainant in the position to argue that at the time these witnesses were cross-examined he did not intend that their evidence would be subject to challenge.

12Paragraph 1 of the particulars seeks to have Mr. Punambolan testify to the reasons for the lack of production on the complainant's machine on October 16, 1989. Mr. Punambolam was cross-examined by the complainant about the production problems on the evening of October 16, 1989. He was asked whether he received an explanation from the complainant for the loss of pro­duction and whether he had accepted that explanation. The witness agreed that he had received an explanation and had accepted it. Counsel for the complainant then sought to establish that the pro­duction problems on October 16th could not be attributed to any fault on the complainant's part. The witness qualified his earlier answer to state that on the next day the machine again worked. Counsel for the complainant asked if that was because the machine had cooled off. The witness did not deny the proposition. Counsel moved to another area of questioning. Counsel did not suggest to the witness that the problems were as a result of a malfunctioning cooling fan or that the witness had knowledge of this. The complainant in his evidence gave a detailed account of the production problems on October 16th, including filing as an exhibit notes he had prepared at the time, and including evidence of his discovery of a malfunctioning cooling fan. The complainant's view of events regarding the lack of production on October 16th clearly was available from the outset of the proceedings.

13The question of whether or not Mr. Punambolam advised Mr. Klassen, the general manager, of the events of October 16th was not dealt with at all in cross-examination of either Mr. Klassen or Mr. Punambolam. Both parties knew that the lack of production occurring on October 16, 1989 was treated by the respondent as the culminating incident leading to discharge. The issue in this case is whether the complainant was discharged for reasons relating to the exercise or attempted enforcement of his rights under the Occupational Health and Safety Act. In any case where an employer asserts cause for discipline or discharge and denies an anti-union motive (in violation of the Labour Relations Act) or motiVe in contravention of section 24 of the Occupational Health and Safety Act, a complainant will seek to impugn any evidence raised that would go to show that the employer had cause. To the extent that the complainant here can show he bore no fault for the lack of production it goes to undermine the legitimacy of the employer's assertion. The question of whether or not Mr. Klassen was advised by, or discussed with Mr. Punambolam, any matter relating to production on October 16th was not put to Mr. Klassen.

14The evidence sought to be adduced with respect to paragraph 2 of the particulars goes to the issue of employer knowledge of the complainant's purported health and safety activity. The complainant sought to adduce the evidence of Mr. Punambolam on the basis that counsel could not possibly have known about it at the time he was conducting his cross-examination. That is not the case. We heard evidence from Mr. Thompson, a witness for the complainant, who testified that he had overheard a rumour to the effect that Luther Callender had informed Jim Klassen of the com­plainant's purported health and safety activity. Mr. Thompson testified that he heard the rumour two to three weeks after the complainant's dismissal. More pertinent is that the source of this rumour was Mr. Punambolam and that Mr. Thompson had been told by Mr. Punambolam that it was the latter who had overheard Mr. Callender. In addition, the complainant testified that he did not file his complaint until some weeks after his discharge because it was only after a conversation with Mr. Thompson concerning this rumour that it occurred to him that the respondent's real motive in terminating his employment might be for grounds relating to his purported health and safety activity. He testified that it was this knowledge that caused him to file the complaint. All of this information was clearly available to the complainant and his counsel prior to the first day of hearing.

15In his cross-examination, Mr. Callender denied speaking to Jim [Klassen] or Joe [Punambolam] regarding the complainant talking to employees about a lunchroom. The cross-ex­amination on that issue went no further.

16In Mr. Klassen's cross-examination he was asked whether he had been told by Luther [Callender] that the complainant was organizing a petition. Mr. Klassen denied having any knowl­edge of a petition or organizing. The cross-examination on that point went no further. He had tes­tified in chief that his first information was upon receiving the complaint.

17In the case of both Mr. Callender and Mr. Klassen the veracity of their evidence on these points was not tested. The complainant also did not raise any of these matters in his cross-ex­amination of Mr. Punambolam.

18Complainant counsel argued that he need not have cross-examined because he had no expectation of getting a favourable response. That is not the basis upon which to limit cross-exami­nation. One may well anticipate an unfavourable response from a witness called by another party. However one might wish to be careful before always assuming that a witness will be untruthful. In addition cross-examination is designed to examine the circumstances surrounding any "unfavour­able" response in order to determine whether it is consistent with other evidence and to examine the interests, perceptions, and general credibility of the witness. The matters raised in paragraphs 3, 5 and 6 are all matters which could have been raised and in fact to an extent were raised and dealt with in the cross-examination of Mr. Punambolam. This is not a situation where a party receives information material to the dispute that it was not aware of or could not reasonably have been aware of through the exercise of due diligence. It is a situation where witnesses would be left in the position of having had no opportunity to explain any alleged contradiction.

19We ruled we would allow Mr. Punambolam to give evidence on the matters identified in paragraph 4. Although those matters could well have been canvassed in Mr. Punambolam's cross-examination, there is nothing to suggest that the complainant previously intended to challenge Mr. Klassen's evidence on this point and knowledge of a purported "cover-up" might well be informa­tion that would remain exclusive to the individuals involved.

20Paragraph 7 of the particulars is in essence the witness's explanation of why he might now "flavour" his evidence somewhat differently. To the extent that there may have been evidence relevant to the witness's credibility we allowed evidence on this point as well.

21The panel also considered whether we could feel confident that the respondent would not be prejudiced in its right to a fair hearing by acceding to the complainant's request. This included consideration of whether the opportunity to cross-examine and to call reply evidence would be sufficient. We were satisfied that there was substantial potential for prejudice to the respondent in this case. The complainant argued (and most specifically with respect to paragraphs 1 and 2) that the evidence was central to the dispute and therefore not to hear it would be a denial of the complainant's right to a fair hearing. The fact that it is material to the dispute however only enhances our concern that the respondent might well be prejudiced and it suggested a heightened responsibility on the part of the complainant to take advantage of the opportunity that he did have to present his case fully. Accordingly, we ruled as we did.

II

22The complainant developed the idea of circulating a petition requesting a lunchroom. He approached Mr. Thompson and Mr. Sonny, two other employees, to discuss the idea and showed them the "green book", referring to the consolidated copy of the Occupational Health and Safety Act and Regulations for Industrial Establishments. Mr. Callender, another employee, denied that the complainant had ever spoken to him regarding a petition. He could not recall having been shown the "green book". When provided with a copy of it, he testified that he had not seen it before. He had not seen the book being shown to other employees nor heard any discussion regarding a petition with other employees. He acknowledged in cross-examination that he did dis­cuss with the complainant that there was a need for a lunchroom although it also seems his concern was less than the complainant's.

23The complainant subsequently asserted that he had shown the green book to Mr. Cal-lender and had discussed the petition with him. The only other evidence on this point was hearsay evidence from Mr. Thompson to the effect that the complainant had told him that Mr. Callender had been shown the book. On the evidence we are not prepared to conclude that Mr. Callender was aware of any activity on the complainant's part to either show the green book to employees or to organize and circulate a petition.

24The evidence of Mr. Sonny is not helpful both because of its very general and hearsay nature and in light of our assessment of his overall credibility. We heard evidence from the com­plainant regarding the removal of the complainant's tea kettle from one of the respondent's offices and the apparent failure of the respondent to provide an adequate alternate location. It would appear that this action motivated the complainant to develop the idea of the petition. The incident involving the moving of the tea kettle bothered Mr. Sonny, he stated that the complainant spoke up indicating a need for a better place to have tea and better facilities "health wise". He testified he heard about this a week before the complainant was fired. There is no other evidence with respect to where he heard it, from whom, or what was actually said.

25In cross-examination Mr. Sonny denied having spoken about the case with either the complainant or his counsel prior to testifying. He denied having any knowledge of the fact that he was going to be subpoenaed. The subpoena had been mailed to him. The witness was not re-exa­mined on any of those points. At that stage of the proceedings we adjourned for lunch. Upon reconvening, counsel for the complainant advised the panel that he was seeking leave to recall Mr. Sonny because he had lied. There was no objection taken by the respondent. The witness had in fact met with counsel and the complainant before the hearing. Counsel posed that the witness had understood the questions in cross-examination to be directed at whether counsel for the complain­ant had asked him to say things that were incorrect. The answer to that latter proposition was no.

26We have serious concerns regarding the veracity of Mr. Sonny's evidence. It would be highly unlikely that he would not have spoken to either the complainant or complainant's counsel prior to testifying. We are also satisfied that the questions put to him in the cross-examination were clear. We are not prepared to place any weight on his explanation after having been recalled as a witness. Not only was the explanation provided in a leading manner but, any clarification or cor­rection ought to have been done through re-examination of the witness.

III

27At its highest the evidence discloses that the complainant showed the "green book" to Mr. Thompson and Mr. Sonny and that he discussed with them the idea of a petition as a means to exert pressure on the respondent to set up a lunchroom for the employees. We note that no peti­tion was ever actually prepared. The complainant asserts that this activity falls within the ambit of seeking to enforce the Occupational Health and Safety Act and/or its regulations. The respondent did not dispute that assertion. In determining whether the respondent violated subsection 24(1) of the Occupational Health and Safety Act we must decide whether the respondent terminated the complainant's employment because he was seeking to enforce the Occupational Health and Safety Act or its regulations by seeking to prepare and circulate a petition requesting a lunchroom.

28Mr. Klassen was employed as general manager in the early fall of 1989. The complain­ant was terminated on October 17, 1989. Mr. Klassen was also a new partner in the business which had changed hands in the summer of 1989. The complainant had been employed by the previous owner since about March 1989, as had Mr. Callender, Mr. Sonny and Mr. Punambolam.

29Mr. Klassen asserted that he had cause to terminate the complainant's employment. On the morning of October 17, 1989 he arrived at work to learn that there had been no production from the complainant's machine the night before. This was, in Mr. Klassen's mind the final straw. He prepared a letter of termination, and had it typed. Upon arriving for his shift that day, the com­plainant met with Mr. Klassen and Mr. Punambolam to discover that his employment was being terminated. There is no suggestion that Mr. Punambolam participated in the decision. Mr. Klassen stated he discharged the complainant for reasons of overall poor performance. He agreed with counsel for the complainant that he had in mind a number of reasons at the time of discharge but did not provide them to the complainant in that he did not feel obligated to do so.

30Following that very brief termination meeting, Mr. Klassen, with the assistance of his secretary, prepared the document filed as Exhibit 2, setting out the reasons for termination. We heard considerable evidence about when this document was prepared. The complainant challenged the timing of the preparation of Exhibit 2 in order to suggest that the reasons it outlined were not the real reasons for termination. However Mr. Punambolam saw the document the following day.

31Mr. Punambolam was also called to testify that the creation of Exhibit 2 was for the purpose of covering up the "real reason" for the complainant's termination. Mr. Punambolam's evidence was that Mr. Klassen showed him Exhibit 2 on the 18th and remarked that this was to cover our ass". There was no suggestion in Mr. Punambolam's evidence that Mr. Klassen in any way indicated that the reasons for the complainant's termination were anything but those stated. Mr. Klassen, although he denied using the words "cover our ass" frankly acknowledged that he set out the notes for purposes of a record. We note that Mr. Klassen has been a police officer and that he was familiar with the taking of notes for future purposes. The fact of making notes in and of itself is not conduct that can be impugned. There is nothing further in the evidence to suggest that Mr. Klassen was doing anything except recording those reasons that were in his mind in deciding to terminate the complainant's employment.

32Mr. Klassen put forward essentially five reasons for terminating the complainant's employment. The first was a concem with respect to the complainant's chronic lateness in arriving at work. It was Mr. Klassen's view that the complainant simply disregarded any concern that had been expressed and continued to arrive late. The complainant justified his behaviour on the basis that he was either picking up other employees or that personal responsibilities interfered with his being on time. He asserted that other employees were also late. However, there was no explana­tion either to the employer or before us as to whether he could adjust his other responsibilities or was in any way willing to acknowledge the employer's legitimate concern. Whether or not the com­plainant had been formally warned with respect to his lateness it is clear that he understood that the respondent was unhappy with this aspect of his attendance.

33The second and third reasons Mr. Klassen provided are related. He had received com­plaints from employees, specifically from Mr. Callender and Mr. Sonny on September 29, 1989 to the effect that the complainant was not pulling his weight in the shop. They were unhappy that the complainant would attend at their machines and adjust controls either in their absence or without their request. This was confirmed by Mr. Callender and denied by Mr. Sonny. We prefer the evi­dence of Mr. Klassen and Mr. Callender in this regard. The three employees are machine opera­tors. It was acknowledged by all that in the processing and moulding of plastics the machines are temperamental. An operator gets to know his machine and works with it to produce a quality product. It was also understood, as the complainant testified, that although one might seek advice from his co-workers (with respect to the setting of controls on a machine for example) he would expect them not to make the adjustments themselves but to leave that to the operator. Part of Mr. Callender's and Mr. Sonny's complaint was that the complainant did not respect this understanding when it came to their machines. Mr. Klassen raised these matters with Mr. Punambolam who advised him that he would deal with it.

34Mr. Klassen also observed the complainant in places where he thought he ought not to be, on other machines, or on the phone. He again spoke with Mr. Punambolam about these things. Mr. Klassen acknowledged that he had never spoken to the complainant directly about these con­cerns.

35In reviewing Mr. Punambolam's evidence it is apparent that Mr. Klassen did raise these concerns and a general concern about the complainant's performance with him. It also appears that Mr. Punambolam either felt these concerns to be exaggerated and/or was unwilling to be the "mes­senger of bad news". It is not apparent that the complainant was ever advised of these difficulties with respect to his performance.

36The fourth matter raised by Mr. Klassen was his assessment of the complainant's response to the introduction of a time card. This occurred in the first week of October 1989. The complainant advised Mr. Klassen that there would be "problems" with a time clock. Upon inquir­ing of the nature of those problems the complainant referred to the taking of breaks. Mr. Klassen advised the complainant to take his breaks. This was not denied by the complainant. The com­plainant only asserted that he would not be able to take his breaks because the other workers did not.

37The final reason advanced by Mr. Klassen for the termination was the fact that the com­plainant's machine was down on October 16th resulting in a lack of production. He also observed that the area had not been cleaned in a way that he felt appropriate. He was also aware that the machine had operated both the shift prior to and immediately following the complainant's.

38The complainant argued that in order to discharge the onus on it, the respondent must show that overall poor performance was the real reason for termination and asked the panel to consider whether the respondent had proven overall poor job performance. We would state the issue somewhat differently. The issue in subsection 24(1) is not whether there was just cause for termination but whether in terminating the complainant's employment the respondent had in mind any reason relating to the complainant's acting in compliance with, or his seeking enforcement of, the Occupational Health and Safety Act or its regulations (an "anti-health and safety motive"). (See Commonwealth Construction Company [1987] OLRB Rep. July 961 at paragraph 21.) The complainant also argued that in order for the reasons for discharge to be convincing they must have a temporal connection with the actual termination. In this case that connection existed only with the production problems on October 16 for which the complainant could not be held responsi­ble.

39Exhibit 2 notes that the complainant stated that his machine would not run properly. Apart from this, the evidence does not establish that Mr. Klassen was aware of any explanation for the lack of production on October 16th. It is clear from the evidence of both Mr. Klassen and Mr. Punambolam that they perceived that the amount of production time lost was higher at those times when the complainant was operating a machine than it was for other employees. The complainant did not deny this but asserted that this was because his concerns with respect to quality control were greater. It also appears that by and large Mr. Punambolam accepted or did not challenge the complainant's explanations regarding loss of production time. The same however could not be said for Mr. Klassen. Mr. Punambolam knew that Mr. Klassen and the complainant "never seen things together". On the whole we take this to mean that Mr. Klassen and the complainant did not see eye to eye with respect to matters relating to production and job performance.

40The complainant provided us with a detailed explanation as to why his machine had not operated on October 16th. It also appears that Mr. Punambolam accepted this explanation. It is clear that Mr. Klassen had continuing concerns about the complainant's employment. From Mr. Klassen's point of view there appeared to be no improvement in the complainant's performance. The complainant was not advised through Mr. Punambolam of the extent and degree of these con­cerns. Nor was he told that his job might be in jeopardy. Even assuming that Mr. Klassen had been given an explanation it is not apparent to us that it would have made any difference to him. Nor did it occur to the complainant until in conversation with Mr. Thompson some time later that his employment might have been terminated for reasons other than his performance.

41Whether the evidence of ongoing lateness, higher lost production time, and complaints from co-workers, in the context of the respondent's failure to fully advise or inform the complain­ant of its concerns would warrant a finding of just cause for termination is not the issue before us under subsection 24(1). We are not satisfied that Mr. Callender had any knowledge of the com­plainant's activity in seeking to prepare and circulate a petition. Nor are we satisfied that the respondent had such knowledge. As referred to earlier, other more serious health and safety con­cerns raised were dealt with at least in part by the respondent without consequence to the com­plainant. On the evidence we are satisfied that in terminating the complainant's employment, the respondent did not take into account the complainant's activity in seeking to prepare and circulate a petition regarding a lunchroom. Therefore there is no violation of subsection 24(1) of the Occupational Health and Safety Act.

IV

42The complainant submitted that absent a finding of a violation of-subsection 24(1), the panel should apply subsection 24(7) of the Occupational Health and Safety Act and perform essen­tially an arbitral function. He submitted that the reasons of poor performance expressed by the respondent did not justify the discharge of the complainant and that we ought to review and mod­ify the penalty. The complainant in this case is not covered by a collective agreement. He is seek­ing reinstatement to his former job and damages for mental distress.

43The complainant submitted that we need not determine whether the Occupational Health and Safety Act regulations relied on did in fact apply but only that the complainant had a genuine health and safety concern. Further, there was no suggestion in this case that the complain­ant's concerns were not genuine.

44It was the position of the respondent simply that subsection 24(7) was discretionary and on the facts of this case the panel ought not exercise that discretion because the termination pack­age provided to the complainant was sufficient. Notwithstanding that the respondent was aware that the complainant was seeking reinstatement, we heard no evidence of the nature of any termi­nation package. We also note that there was no suggestion that the contract of employment in this case contained a specific penalty for any of the infractions relied upon.

45The complainant relied on Butler Metal Products, [1988] OLRB Rep. Oct. 1003 in his

argument for applying subsection 24(7) of the Occupational Health and Safety Act. However that

case does not deal with subsection 24(7). In that case the complainant was found to have expressed a genuine health and safety concern and the respondent was found to have discharged the com­plainant in violation of subsection 24(1) of the Occupational Health and Safety Act.

46In the circumstances of this case we are not prepared to exercise our discretion under subsection 24(7) to consider modification of the penalty imposed. As discussed in Commonwealth Construction Company, supra, employees covered by a collective agreement and having the right to proceed to arbitration have been given, under subsection 24(2), the option of choosing their forum to have these issues resolved. Employees not covered by a collective agreement do not have a right to proceed to arbitration to have the issue of just cause determined. Rather they have the right to file a wrongful dismissal action in the courts. In either case, a forum for determining the issue of cause exists. Section 24 of the Occupational Health and Safety Act exists to protect employ­ees when raising health and safety concerns. It does not in our view, supplant the primary forum for determining the issue of cause. However there may well be cases where those issues appear joined and in our view subsection 24(7) addresses those situations. For example, an employer may take action against an employee which is not in violation of subsection 24(1) in circumstances where the employee genuinely but mistakenly believes that he or she is engaged in protected health and safety activity. Subsection 24(1) alone would not provide adequate protection to the employee. Subsection 24(7) should be interpreted so as not to discourage the raising of health and safety concerns. In these circumstances, there will be a bona fide health and safety concern on the employee's part, and in addition, a connection between that concern and the actions of the employer which do not amount to a violation of subsection 24(1). In such a case, it would be appropriate to consider, absent a specific penalty for the infraction, whether the penalty imposed was just and reasonable in all the circumstances (see for example, Ministry of Community and Social Services v. Douglas Lloyd, [1988] OLRB Rep. Jan. 50; Commonwealth Construction Company, supra; The Corporation of the City of Ottawa, [1986] OLRB Rep. June 798; Camco Inc., [1985] OLRB Rep. Oct. 1431; Baltimore Aircoil of Canada, [1982] OLRB Rep. March 327; and more recently, Bilt-Rite Upholstering Co. Ltd.,[1990] OLRB Rep. July 755).

47However, where, as here, there is no connection whatsoever between the health and safety concern expressed by the employee and the actions or conduct of the employer, we do not think it appropriate to exercise our discretion under subsection 24(7). The actions of the employer in terminating the complainant's employment bear no connection or nexus to the complainant's proposed preparation or circulation of the petition. The purpose of section 24 is protected and maintained. We do not believe that the existence of subsection 24(7), absent a relationship between the employer action and the bona fide health and safety concern of the employee provides a greater right with respect to the issue of cause than would otherwise be available.

48Therefore, having regard to all of the above, this complaint is dismissed.

DECISION OF BOARD MEMBER PAT GRASSO: October 11, 1990

1I am of the view on the evidence before us that the complainant was terminated by the respondent in violation of subsection 24(1) of the Occupational Health and Safety Act ("O.H.&S. Act").

2Section 24 prohibits an employer from responding in the ways outlined in subsection (1) paragraphs (a) to (d) because a worker has sought enforcement of the Act or the regulations. A worker may seek enforcement by complaining to the employer, by contacting an O.H.&S. inspector, by making a complaint under the Act, or by other means.

3In this case the complainant sought to enforce the Act in discussing the possibility of cir­culating a petition for other employees to sign; the petition was to request that management pro­vide a lunchroom.

4Two employees testified that the complainant had discussed with them the idea of a petition and were shown a "green book" identified as the 0. H. & S. Act and Regulation. Another employee, Mr. Callender, testified that the complainant had never spoken to him about a petition, he did not remember any "green book". The complainant asserted that he had shown the green book to Mr. Callender and had discussed the petition with him. In cross-examination, Mr. Callen­der admitted that the complainant had talked to him about the need for a lunchroom in order for the employees to have a clean place to eat their lunch. Mr. Callender admitted also in cross-exami­nation that he had been promoted to shift leader shortly before the complainant was discharged.

5An employee seeking enforcement of the O.H.&S. Act is protected by the Act in order to encourage employees to raise health and safety matters with their employer and others in order to reduce the probability of injuries or illness in the workplace.

6Subsection 24(5) of the O.H.&S. Act also makes it clear that the onus of proof lies upon the employer to satisfy the Board that its decision was not contrary to the Act.

7At the time of termination the complainant was handed a Notice of Termination, the first sentence of which said, "This notice is to inform you that effective immediately, your employ­ment with this firm has been terminated due to poor performance." When the complainant asked specifically why he was being terminated, he was advised by Mr. Klassen that it was because of his overall performance.

8However, a second document, exhibit #2 dated October 17, 1989, 3:00 p.m. lists four reasons for the termination. The complainant was never reprimanded or suspended for any of the other reasons and according to Mr. Klassen's own testimony he didn't know whether the other rea­sons were actually brought to the attention of the complainant. The second document was simply typed and placed in the file.

9Although the complainant did not seek to rely on the matters of the provision of pres­sure gauges, respirators or hot water, I can only conclude that Mr. Klassen must have been aware of the complainant's concern with health and safety issues. In my view, Mr. Klassen was also aware that the complainant was attempting to get support from other employees in order to compile a list of health and safety issues to present to the company. Mr. Klassen felt that the complainant was starting to be a "pain in the butt", and decided to do something about it. The opportunity pre­sented itself on October 17, 1989.

10The fact that Mr. Klassen had no specific reasons to give the complainant for the dis­charge, and the fact that he saw fit to compile a list of reasons after he had discharged the com­plainant lead me to believe that the reasons he gave to the complainant at time of termination and the reasons outlined in exhibit #2 are a smoke screen to cover up the violation of the 0. H. & S. Act.

11In Commonwealth Construction Company, [1987] OLRB Rep. July 961, the Board dealt with a complaint such as the one before us and stated at paragraph 21:

21. The issue we must decide is why the complainants were discharged. This turns on our finding of the facts, based on our assessment of the evidence and whether we believe the company's claim that it discharged them because they wouldn't perform their work, or the complainants' claim that they were performing their work and never took company time for their pursuits, and were discharged because they raised safety matters. Put in terms of the statutory language, were the complainants discharged because they acted in compliance with the Act or because they sought its enforcement? It is important to understand that what is protected by the Act is the right of employees not to be threatened or disciplined because of their acting in compliance with the Act (or regulations etc.) or seeking its enforcement. An employee might engage in conduct warranting discipline, and in those circumstances an employer can impose discipline, provided the discipline is not motivated even in part by a concern that the employee was acting in compli­ance with or seeking to enforce the Act. Discipline levied for that reason is proscribed by sec­tion 24(1). Whether a breach is found will depend on whether the Board concludes that the dis­ciplinary response was even partially prompted because the employee was seeking to exercise his or her rights under the Act. In this respect, the Board's inquiry under section 24 of this Act parallels the nature of the inquiry under section 89 of the Labour Relations Act.

12In Commonwealth Construction, supra, the Board decided that the complainants had not been dealt with contrary to subsection 24(1) and went on to consider the application of subsec­tion 24(7) which provides as follows:

(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.

13At paragraph 35 of Commonwealth Construction, supra, the Board concluded:

35. As well, the working of subsection 24(7) on its face gives the Board the jurisdiction to substi­tute such penalty as the Board considers just and reasonable, even though the Board has not found the employer to have violated subsection 24(1) and even though the Board "determines that a worker has been discharged or otherwise been disciplined by an employer for cause". In circumstances such as those in the instant case, where the Board has determined that the employer has not breached the Act in its discharge of an employee, it is both sensible and in accord with the specific wording of subsection 7 for the Board to then inquire whether the employer's disciplinary response was nevertheless appropriate in all the circumstances. Under subsection 24(2), a worker under a collective agreement has a choice of adjudicative forum where a contravention by an employer of subsection 24(1) is alleged, and the worker may elect to have the matter dealt with either by arbitration or by filing a complaint with this Board. The legislature has set up a mechanism under section 24 whereby the worker can have both the occu­pational health and safety allegation and the merits of the discipline dealt with in one forum, either final and binding arbitration or through a complaint to the Ontario Labour Relations Board. The scheme of section 24, the impact of subsection 24(3), and the language used in sub­sections 24(2) and 24(7), support the view that the legislature intended that the adjudicative forum chosen by the worker would deal with both the alleged breach of section 24(1), and, in the event the adjudicative tribunal found the employer had not breached the Act, with the issue of whether the specific penalty imposed by the employer for cause was just and reasonable in all the circumstances. No valid labour relations purpose would be served by reading section 24(7) to any other effect.

In my opinion the interpretation of subsection 24(7) in the Commonwealth Construction decision is the appropriate interpretation to be applied in the circumstances of this case.

14On my review of the evidence and given the approach outlined at paragraph 21 of the Commonwealth Construction case, I would have found a violation of subsection 24(1) of the Act.

15In the alternative, we have jurisdiction under subsection 24(7) of the Act to consider modification of the penalty imposed and to substitute such other penalty or discipline as to the Board seems just and reasonable in the circumstances. I would have found that the company had no sufficient cause to discharge the complainant and would have exercised my discretion under subsection 24(7) to order the complainant reinstated with compensation.