Everette Chapelle v. Toronto Transit Commission Wheel Trans Department, 1990 CanLII 5733

[1990] OLRB Rep. January 90

0815-89-OH Everette Chapelle, Complainant v. Toronto Transit Commission Wheel Trans Department, Respondent

BEFORE: R. A. Furness, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.

APPEARANCES: Everette Chapelle for the complainant; G. F. Luborsky, R. A. Winter, B. Stringer, K. J. Worthy and P. B. Chatoff for the respondent; David E. Gaudette for Amalgamated Transit Union, Local 113.

DECISION OF THE BOARD; January 26, 1990

1The name of the respondent is amended to read: "Toronto Transit Commission Wheel Trans Department".

2The complainant has made a complaint under section 24 of the Occupational Health and Safety Act. It is the position of the complainant that the respondent has contravened section 24(1) of that Act.

3In the complaint Mr. Chapelle has alleged that on or about May 8, 1989, he was dealt with by Peter Chatoff, the acting superintendent operations of the respondent, contrary to the provisions of section 24 of that Act in that he did on his own behalf or on behalf of the respondent as follows:

Did Violate section 16 of the Occupational Health and Safety Act and did deny me the right to exercise my rights under section 17 of the same Act. Further the company violated section 24 of the O.H.&5.A. by terminating my employment because I exercised my rights.

On May 1st, 1989 after working 14 hours and 15 minutes and because of a tight Schedule I observed two 15 minute breaks. On these breaks I only found time to consume two cups of coffee. Having no time to order a sandwich and consume same. After working over 14 hours without a meal break or sandwich I found myself exhausted and fatiqued (sic). I notified control that I would be stopping on the way in to the garage for a bite to eat. Upon returning to the garage I notified the company that I would be refusing to work under section 23 of the O.H. & S.A. and requested the Ministry be brought in. The Ministry found I had no complaint under section 23.

On May 8th, 1989 at 5.45 a.m. I met with Mr. Peter Chatoff. I informed Mr. Chatoff that the company was in violation of section 18 of the Employment Standards Act and that under section 17 of the OH. & S.A. I am bringing this hazard to his attention. Mr. Chatoff would not address my complaint but did terminate my employment. I feel this is a reprisal for exercising my rights under the OH.&S.A.

The complainant has requested the following remedy:

Reinstate with back pay, seniority and beifits (sic) plus interest and to include paid up contributions to the Canada Pension Plan from 1985 to date. Due to the ongoing circumstanses (sic) of the company refusing to address this issue over the years.

4In its reply the respondent denied any violation of the Occupational Health and Safety Act. It was the position of the respondent that the essence of this complaint is an allegation that the respondent violated provisions of the Employment Standards Act and that the Board was without jurisdiction to dealt with this matter. It was also the position of the respondent in its reply that the complainant had for at least four years been scheduled on the shifts complained of herein. It was the further position of the respondent that the complainant had the option to exercise his seniority to bid into shifts of lesser duration, but chose not to do so. The respondent submitted that the instant complaint is an abuse of the Board's process and that the complainant is estopped from challenging the propriety of the shift assignments that he himself selected.

5Section 24(1) of the Occupational Health and Safety Act provides:

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 issue which is raised in this complaint is whether the respondent or a person acting on behalf of the respondent has dismissed the complainant because he has acted in compliance with the Occupational Health and Safety Act or the regulations or an order made thereunder or has sought enforcement of the Occupational Health and Safety Act or the regulations.

6The complainant prior to the termination of his employment was a driver of a Wheel Trans vehicle for the handicapped. He had been employed in this capacity both by the respondent and formerly by a predecessor employer which had previously operated Wheel Trans vehicles for the handicapped. During the early months of 1989, the complainant had informed the respondent that, in his view, it was in breach of various provisions of the Highway Traffic Act and the Employment Standards Act. These matters were addressed to and the respondent concluded that it was not in violation of the provisions referred to by the complainant. An Inspector's Daily Report dated April 17, 1989, notes that the complainant refused to work past 3:55 p.m. due to the Occupational Health and Safety Act and the Employment Standards Act. His vehicle was left at an address in Toronto and the complainant was driven to see Mr. Chatoff. It was necessary for the respondent to dispatch a serviceman to return to vehicle to its proper location. The complainant informed Roger Winter, superintendent operations, that he refused to work later than 3:55 p.m.

7The evidence established that Mr. Chapelle, by virtue of his seniority, had the opportunity to bid on a selection of ten hours, four day work week shifts. He expressed the view that he did not wish to continue to work thirteen hour shifts because these hours of work were taxing and rendered him too fatigued to safely perform his duties. He acknowledged the existence of ten hour, four day work week shifts but rejected the off-days which were available because these off-days did not suit his life style. Mr. Chapelle's life style required that he not work on Saturdays and Sundays. An inspector from the Industrial Health and Safety Branch of the Ministry of Labour investigated the complaint by Mr. Chapelle under the Occupational Health and Safety Act. The inspector in his report dated April 19, 1989, did not conclude that a violation of the Occupational Health and Safety Act had occurred. The inspector noted that Mr. Chapelle's complaint about the hours he had worked was outside the Occupational Health and Safety Act. As this point the respondent expected Mr. Chapelle to resume his duties on his next scheduled working day of April 22, 1989. Mr. Chapelle was advised that he had the right to appeal the decision of the inspector. However, it was made clear by the inspector that if Mr. Chapelle exercised his right of appeal he must continue his duties while the process of appeal was in progress.

8On May 1, 1989, a further operating irregularity occurred with respect to Mr. Chapelle. At 6:26 p.m. he advised the respondent's control that after his last drop-off he would be stopping for something to eat on his way back to the Lakeshore Garage. Later at 7:14 p.m. he called control and advised that he was finishing his supper at home and would be returning the bus to the garage later. Upon returning to the garage at 8:00 p.m. he submitted a claim for one hour and fifteen minutes overtime. Mr. Chapelle was advised by an official of the respondent that, as a matter of policy, the respondent did not pay operators for time spent performing other than assigned duties, such as dining. Mr. Chapelle responded that if overtime was not sanctioned by the respondent he would be filing a grievance. On May 4, 1989, Mr. Chapelle was advised by Mr. Chatoff that the taking of a vehicle belonging to the respondent to a private residence and having it lay over there while having supper was an error and must not re-occur, that overtime pay for stopping en route to eat was not in order and would not be given and that the correct operating procedure was to return to the garage directly from the last drop-off after clearing with control.

9A further incident occurred at 5:50 p.m. on May 6, 1989, when Mr. Chapelle contracted control to advise that his schedule was in violation of section 18 of the Employment Standards Act. He was advised by dispatch to carry on and report it to the supervisor upon the completion of his shift. At 7:10 p.m. the shift supervisor of the respondent received a phone call from Mr. Chapelle who indicated that the duration of his shift was over twelve and a half hours. He asked dispatch to move his last call or have someone meet him at the drop location in question to drive him back to the yard. Mr. Chapelle was told to carry on with his last pick-up and telephone from the drop location in question. At 7:55 p.m. Mr. Chapelle phoned to say that he was clear of his last drop-off and inquired whether someone was going to pick him up. He was instructed to bring the bus back to the yard and that he was expected to complete his shift in accordance with the collective agreement and file a grievance later. During the telephone conversation Mr. Chapelle declined to comply with this instruction and again demanded whether someone was going to pick him up. At 8:30 p.m. Mr. Chapelle reported back to the yard with his vehicle and was interviewed by the shift supervisor. Mr. Chapelle was warned that he was obligated to return his vehicle to the yard and that it was a serious incident to refuse. He was asked if he saw any problem with his assigned shift for May 7 and he indicated that should he be scheduled on a crew of more than twelve and half hours he might not even pick-up the patrons in the next instance. At this point he was requested to see the office supervisor on Monday morning when he reported.

10On May 8, prior to commencing his shift at 5:45 a.m., Mr. Chapelle was interviewed by Mr. Chatoff regarding the incident on May 6. The events of May 6 were reviewed and while Mr. Chapelle agreed that he understood the proper procedures he stated that he had presented the matters previously and had received no satisfaction. Mr. Chatoff stated that he understood that the shifts were in order and that Mr. Chapelle must perform his entire duties. When Mr. Chatoff asked him if he would complete his entire thirteen hour shift, he replied that he would work but not complete an entire thirteen hour shift on May 8. Since Mr. Chapelle was scheduled to work a shift of thirteen hours on that date, Mr. Chatoff again asked him if he would complete his entire thirteen hour shift that day. Mr. Chapelle responded that he would not and that he would be calling in later to have adjustments made to his last call so as to finish within twelve and a half hours. The reaction of Mr. Chatoff was to inform Mr. Chapelle that he was compelled to relieve him from duty and that the matter would be dealt with at the next level by Mr. Winter, the acting manager of the Wheel-Trans Department.

11On May 9 there was a meeting between Mr. Winter and Mr. Chapelle. The former reviewed the reports from Mr. Chatoff. It was the position of Mr. Chapelle that the respondent was in violation of section 18 of the Employment Standards Act. There was some discussion whether the permit under that Act was for a thirteen hour shift (twelve and half hours with two fifteen minute breaks). Mr. Chapelle reiterated that he would not work thirteen hour shifts. Mr. Winter suggested that Mr. Chapelle had sufficient seniority to sign on for a ten hour shift. This was rejected by Mr. Chapelle who would not compromise on his views. Mr. Chapelle left the meeting and declared that he would go on to the Ontario Labour Relations Board and file a grievance. On May 10 Mr. Winter upheld the decision to dismiss Mr. Chapelle.

12It is the finding of the Board that Mr. Chapelle was dismissed from his employment with the respondent because of his refusal to work his assigned shift. During the meetings on May 6 and 8 there was no reference to the Occupational Health and Safety Act by Mr. Chapelle. During those two meetings his attention was focused on the Employment Standards Act. At an earlier point in time Mr. Chapelle channelled his energies towards a consideration of the Highway Traffic Act. It appears to the Board that Mr. Chapelle knew exactly the hours and days of the week he wished to work. If he worked the thirteen hour shifts he could apparently enjoy his preferred days of leisure. On the other hand if he was prepared to work the ten hour shifts he could not always enjoy his preferred days of leisure. He was unwilling or unable to work the thirteen hour shifts and therein lay his dilemma. It further appears that Mr. Chapelle determined that his appropriate response was to try and shorten his thirteen hour shift to a customized length of his liking. To this end he endeavoured to keep the pressure on the respondent by raising spurious allegations that the respondent had variously violated the Highway Traffic Act, the Employment Standards Act and the Occupational Health and Safety Act. In this complaint we are dealing directly with only the latter Act. An investigation by an inspector under that Act failed to disclose any violation thereof. The evidence before the Board completely fails to disclose a violation of any section of the Occupational Health and Safety Act. This complaint is accordingly dismissed.