Ontario Labour Relations Board

[1990] OLRB Rep. January 105

3084-88-OH William James Kerr, Complainant v. W.C. Wood Co. Ltd., Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members M. Rozenberg and E. 0. Theobald.

APPEARANCES: Izaak De Rijcke for the complainant; Robert J. Atkinson, Patty Murray and Paul Morris for the respondent.

DECISION OF THE BOARD; January 19, 1990

1. This complaint was filed pursuant to section 24 of the Occupational Health and Safety Act (hereinafter referred to as the O.H.S.A. or the Act). The substance of Mr. Kerr's complaint is that he was discharged because he acted in compliance with the Act or the regulations or an order made thereunder and sought the enforcement of the Act or the regulations.

2. The respondent employer (Wood) submits that Mr. Kerr was terminated for good and sufficient reasons which were unrelated to the fact that Mr. Kerr raised concerns about any safety issues. More particularly, Wood asserts that Mr. Kerr was not terminated because of any "anti­safety animus" on the part of the company. It is submitted that Mr. Kerr was discharged because he deliberately and intentionally, or in the alternative recklessly swung a hammer at a fellow employee ultimately hitting that employee's hand thereby causing a significant injury.

3. Mr. Kerr asserts that this incident was an accident and that Wood merely seized upon this opportunity to terminate his employment because, in the mind of the employer, Mr. Kerr had become a "pain" because, inter alia, he had sought the enforcement of the Act, had cooperated with the Ministry of Labour during its investigation of an industrial accident three weeks prior to his discharge, and because he had recently been elected to the Health and Safety Committee.

4. Before we examine the facts we find it appropriate to briefly review the applicable law within which we propose to assess the evidence before us.

5. Section 24 of the O.H.S.A. reads 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 (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.

(8) Notwithstanding subsection (2), a person who is subject to a rule or code of discipline under the Police Act shall have his complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.

6. As was noted by the Board in Commonwealth Construction Company, [19871 OLRB Rep. July 961 at paragraph. 21:

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 the this [sic] Act parallels the nature of the inquiry under section 89 of the Labour Relations Act.

7. As was stated by the Board in Ministry of Community and Social Services, [1988] OLRB Rep. Jan. 50 at paragraph 19:

Conduct which seeks enforcement of the Act is protected activity in order to encourage workers to raise health and safety concerns with their employer and others and to thereby reduce the likelihood of injury in the workplace.

8. In assessing whether an employee's discharge was a violation of the O.H.S.A., we must look to all the circumstances surrounding the discharge. Leaving aside for the moment consider­ation of section 24(7) of the O.H.S.A., (the proper interpretation and application of that section was vigorously argued by both counsel), an examination of all the circumstances is not to deter­mine whether there is just cause for the discharge, or whether the discharge was "fair" or "unfair" in some objective sense. Rather, our task is to determine whether the discharge was motivated in whole or in part by Mr. Kerr's safety related activities, or by Mr. Kerr~ s exercise of rights con­ferred upon him by the O.H.S.A. In so doing we must look to all of the circumstances.

9. In appropriate cases, an employer's conduct which is arbitrary, patently unfair or unrea­sonable, unduly harsh, precipitous or a response which is extraordinary given the employer's previ­ous practice may lead to an inference of "anti-safety animus". In contested section 24(1) com­plaints, one would not normally expect an employer to openly and candidly admit it acted in contravention of the O.H.S.A. In Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299 at paragraph 5 (a complaint involving section 89 of the Labour Relations Act) the Board put this mat­ter as follows:

10. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other "peculiarities". (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278)....

For this reason, the Board carefully scrutinizes the employer's conduct and surrounding circum­stances to determine if the "true" or "real" motives (or one of the motives) of the employer was "tainted" by the employer's "anti-safety animus", or more correctly the employer's animus towards the employee because the employee sought enforcement or compliance with the Act.

10. The analysis the Board uses in making that determination parallels the analysis that it uses when dealing with complaints made pursuant to section 89 of the Labour Relations Act. Like section 89 of the Labour Relations Act, section 24 also contains a reverse legal onus provision. As was noted in The Barrie Examiner, [1975] OLRB Rep. Oct. 745:

the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct.

This approach effectively prevents an anti-union motive from masqueradering as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabil­ities in order for the employer to establish that no violation of the act has occurred.

11. The same sorts of considerations and analysis apply in determining whether section 24(1) of the Act has been violated. In first determining whether an employer has acted in contra­vention of section 24(1) of the Act (and again leaving aside for the moment any consideration of section 24(7) of the Act) we cannot be "unduly swayed by either the coexistence of fair treatment or by the coexistence of legitimate reasons for the employer's conduct" (Pop Shoppe (Toronto) Limited, supra, at page 301). If the employer has satisfied us that no part of the reason for the dis­charge was because Mr. Kerr acted in compliance with the Act of the regulations or because he sought the enforcement of the Act or the regulations, the respondent would not have violated sec­tion 24(1) of the Act. It is only after making that determination that we can turn to address the effect, if any, of section 24(7) of the Act.

12. During the six days of hearing in this matter we hear the testimony of nine witnesses. As is not unusual in cases of this nature, the evidence of the witnesses called on behalf of Wood conflicted with the evidence of Mr. Kerr. The credibility of witnesses was an important issue to be resolved. We do not propose to recite the evidence of each of the witnesses and thereby point out various inconsistencies within their evidence or the contradictions with the evidence of any other witnesses. We propose merely to set out what we have found to be the relevant facts of the story as it unfolded before us.

13. Wood manufacturers freezers, refrigerators and other appliances at its two locations in the City of Guelph. It employs approximately eight hundred employees. The employees are repre­sented by a labour committee of elected employee representatives who annually negotiate with management in respect of the terms and conditions of employment at Wood. That labour commit­tee has not been certified as bargaining agent by the Board. The Board has not found it to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act. Nevertheless, the committee has for the past twenty years or more negotiated with management. The results of those negotiations can be found in an hourly employee's guide book which contains, inter alia a provision in respect of the resolution of complaints through neutral third party arbitration.

14. Mr. Kerr first commenced employment with Wood in August 1978. Originally hired as a labourer, at the time of his discharge, he was a "cut to length" machine operator. Although Wood had certain concerns about what it sought to characterize during the course of the hearing as Mr. Kerr's quick temper or violent or aggressive attitude, the company did not have any concerns about Mr. Kerr's competence and ability to perform his work. In this regard, it is clear that Mr. Kerr was an efficient, industrious and "good" worker who did his job well.

15. Although Mr. Kerr was fired on February 10, 1989, the sequence of events which led up to that discharge started well before then. The respondent characterized the ultimate event which caused Mr. Kerr's discharge as a "culminating incident". It was asserted that this incident alone was sufficient to warrant discharge, but that in the alternative this culminating incident, in light of Mr. Kerr's past and extensive record certainly warranted discharge. It is therefore necessary to briefly set out Mr. Kerr's disciplinary record.

16. In April 1985, Mr. Kerr received a written warning in which he was advised "... this company will not tolerate the abuse of its supervisor's and use of abusive language towards them. If this happens again you will be severely disciplined." In July 1987, Mr. Kerr was suspended for two days for fighting with another employee. At that time Mr. Kerr was advised "you must not strike another person here again. Should this happen again, your dismissal will result." In Novem­ber 1988, Mr. Kerr was suspended for five days. The disciplinary record in that instance states as follows:

It is understood that you approached a tow motor driver from behind and hit him on the back of the head and then on the upper arm. When he attempted to fend you off with an extended foot you pulled him off the tow motor which was still running. You claim it was only "horseplay" and you were not angry.

Your actions were totally unacceptable regardless and in light of the potential safety hazard you created and because of your recent employment history of conducting yourself in an improper manner you are suspended from work for the entire week of November 21,1988.

You have also been notified that any further misconduct within a 24 month period commencing to-day may result in your immediate discharge.

17. At that time, Mr. Kerr was verbally advised that the five-day suspension was his "last chance". If there was any further "misconduct" of any type, his employment would be terminated. Mr. Morris testified Mr. Kerr was concerned about the length of time he would have to "live under those conditions" but ultimately agreed to the twenty-four month period. Management at Wood felt that the incident on February 9, 1989 fell within the purview of the "misconduct" referred to in this letter.

18. These disciplinary actions were not grieved by Mr. Kerr. During the course of the hear­ing, an issue arose as to whether we could, or should, "go behind" Mr. Kerr's disciplinary record and hear evidence in respect of the incidents which led to the imposition of this discipline. We orally ruled as follows:

We have considered the submissions of the parties. The employer in this instance seeks to rely upon the complainant's previous disciplinary records to support the discharge imposed. The complainant is not represented by a trade union, or more accurately, an organization of employ­ees which has been found to be a trade union within the meaning of clause l(1)(p) of the Labour Relations Act and which has been certified by the Labour Relations Board to represent the employees of the respondent. We have heard evidence however, that the terms and condi­tions of employment for the employees of the respondent are covered by a document entitled "The Hourly Employees Guidebook". That document is a written document which is negotiated annually between the respondent company and the group of employee representative known as "labour representatives" who are elected annually by their fellow employees. The committee of labour representatives negotiate with management of the respondent in respect of the terms or conditions of employment contained in the Hourly Employees Guidebook. That guidebook also contains a grievance and arbitration procedure provision similar to those found in "standard" collective agreements negotiated between employers and trade unions who have been found to be trade unions within the meaning of section l(1)(p) of the Act. There is an explicit provision which grants employees the right to arbitration by a third party neutral. The evidence thus far discloses that the complainant did not grieve the discipline which has been imposed upon him in the past and upon which the company now seeks to rely. Under these circumstances, the Board is not prepared to hear the evidence regarding these previous incidents or to assess the merits of the discipline imposed in respect of those previous incidents. The record speaks for itself. In so ruling, however, we wish to make it clear that the complainant or counsel is not precluded from leading evidence or cross-examining as to whether the complainant did "lodge any grievance or complaint" short of arbitration as provided for in the Hourly Employees Guidebook.

19. On January 19, 1989, a serious accident occurred in the workplace. Notwithstanding his use of hand guards or "possum guards", an employee had his hands caught in a press and was severely injured. The Ministry of Labour came to investigate the accident on the same date, but were unable to find anything wrong with the press or the guards which could have caused the acci­dent. After the Ministry of Labour officials had left the plant however, rumours began to surface at the plant that another employee had tampered with the machine shortly after the accident. The employer was concerned about any allegations of tampering especially in view of the fact that the Ministry investigators had been unable to ascertain the cause of the accident and because the com­pany had similar equipment in other areas of the plant. As a result, the company determined to conduct its own investigation.

20. On January 20, 1989, Mr. Paul Morris, the Human Resources Manager at Wood, together with Mr. Tom Cousineau, the Vice-President and General Manager of the Chest Freezer Division, started to interview employees whom the company had ascertained might have some information about the accident and the events immediately preceding and following the accident. Present at each of these meetings was Mr. John Courtney, the President of the Labour Committee. At approximately 8:30 a.m., Mr. Kerr was interviewed. Mr. Kerr was the fourth or fifth employee interviewed that morning. The employees who had been interviewed prior to Mr. Kerr had all been cooperative and candid in telling the employer what they knew and what they had seen around the time of the accident. During the interview of the first employee, Mr. Courtney did raise some concerns as to whether the company could legally conduct any investigation under the cir­cumstances, but was satisfied when the company explained it had consulted legal counsel and had been advised that it could conduct such an investigation.

21. When Mr. Kerr was interviewed, the company explained what it was doing and why it was conducting its investigations. During the course of the meeting, either through specific words or by his conduct, Mr. Kerr conveyed the impression that he knew something about the accident, but that he was not prepared to speak to the company representatives about the matter until he had an opportunity to speak to a Ministry official. Mr. Kerr did not then or at any other time spec­ify why he was not prepared to speak with the company officials about the matter or why he was reluctant to talk to the company until he had spoken to the Ministry. The meeting was short and Mr. Kerr left.

22. Upon being confronted with Mr. Kerr's uncooperative attitude, the company represen­tatives contacted legal counsel. They were advised that the company had both the right and an obligation to investigate, and that the employee had an obligation to advise the company if the employee was aware of any safety concerns or any contravention to the Act (section 17 of the O.H.S.A.). As a result of this advice, the company again met with Mr. Kerr at approximately 11:30 a.m.

23. During the second meeting, the company again advised Mr. Kerr of the seriousness of the accident and the allegations of tampering which had surfaced. Mr. Kerr was also advised that the company viewed seriously his refusal to cooperate with the investigation. Mr. Morris told Mr. Kerr that if he did not cooperate by telling the company what he had indicated he knew, the com­pany would "escalate the matter" and he, Mr. Kerr, should treat this as a verbal warning. Mr. Kerr was given a half hour to think it over, contact the Ministry and get back to the company with his position. According to Mr. Courtney, both he and Mr. Kerr thought that was fair and agreed to the one-half hour time limit.

24. In the intervening half hour, Mr. Kerr contacted the Ministry of Labour. He subse­quently advised the company that an inspector was on his way to deal with the matter, but that he had been advised that the company did not have the right to require Mr. Kerr to answer any ques­tions and was acting in contravention of section 24(1) of the Act. Mr. Morris responded by refer­ring to the employees' responsibilities under section 17 of the Act. This stalemate continued until the inspector arrived. The inspector took a statement from Mr. Kerr, and provided a copy of that statement to the company. The information provided in the statement did not materially differ from the information provided by the employees who had been interviewed before Mr. Kerr or by the dozen or so other employees who were interviewed. In fact, during his cross-examination, Mr. Kerr admitted that he thought he had some information which might assist the company in its investigation but that "others had more information than me." After the inspector had taken Mr. Kerr's statement and given it to the company's officials, the parties met and Mr. Morris expressed his opinion that he did not understand why Mr. Kerr had not provided this information in the first place. Mr. Courtney testified that in view of the information which Mr. Kerr did in fact have, he also could not understand why Mr. Kerr did not, during the very first interview at 8:30 a.m., coop­erate with the company in its investigation. The entire issue was resolved that day. No disciplinary action was taken against Mr. Kerr. The company was satisfied with the information which Mr. Kerr provided to the company through the Ministry of Labour inspector and Mr. Kerr was satisfied that he has been able to first speak with the inspector before he spoke to Mr. Morris.

25. The company did not at any time during this incident voice any concerns or objections to Mr. Kerr talking to the Ministry of Labour or an inspector. Mr. Kerr did not file any grievances or complaints in respect of this incident, although he did provide the inspector with a "report of witness" in which he outlined the sequence of events that occurred on January 20, 1989. Hindsight has shown this matter to be the proverbial tempest in a tea pot.

26. Mr. Kerr alleges that the events of January 20, 1989 was one of the reasons why he was ultimately discharged. His cooperation with the Ministry of Labour with respect to its investiga­tion, and his less than cooperative attitude towards the company's investigation "soured" Mr. Morris' disposition towards Mr. Kerr and caused Mr. Morris to seize upon the first available opportunity to discharge him. The respondent denies these allegations. On the basis of the evi­dence before us, we are satisfied that the events of January 20, played no part in the company's decision to discharge Mr. Kerr on February 10, 1989.

27. Mr. Kerr also alleges that his election on February 8th or 9th to the Health and Safety Committee motivated the employer in its decision to terminate his employment after the February 9th incident. The employer denies this. After the January 19th accident and, because the Health and Safety representative had recently resigned his position, the company determined to "revamp" the Joint Health and Safety Committee. The company decided to have a "full-blown election" throughout the plant to have the employees elect their representatives to the committee. There were some problems in the conduct of that election including employees' complaints that not all parts of the plant were properly represented on the committee. Those complaints caused the com­pany to redefine the electoral zones and that in turn caused the zone in which Mr. Kerr's depart­ment fell to be enlarged. Mr. Kerr suggested that this enlargement was an attempt by the company to thwart his attempts to be nominated and elected to represent his zone. We disagree. The change in the zone was initiated by the complaints of the employees. It was at the suggestion of the Presi­dent of the Labour Committee that the previously unrepresented areas of the plant were added to Mr. Kerr's zone. There was no malice towards Mr. Kerr and no "anti-safety" animus involved in these actions. Similarly, we find that the "irregularities" in the conduct of the vote, (irregularities which related to the actual balloting and the counting of the votes), were not attempts by the com­pany to hinder Mr. Kerr's electioning to the committee. Employees did complain about the fact that there was no central location for the ballot box so as to ensure that every employee had the opportunity to vote, and about the fact that there was no employee representative present for the counting of the ballots. These concerns were addressed in the election held to fill the vacancy cre­ated by Mr. Kerr's discharge. There is simply no evidence to suggest however that any of these irregularities were designed to defeat Mr. Kerr's desire to be elected as a health and safety repre­sentative. In fact, logic dictates the opposite conclusion. Only company officials were present at the counting of the ballots. If management at Wood was seriously concerned about Mr. Kerr's election to the Health and Safety Committee, they could merely have announced fictitious results. They did not. Rather, even prior to the posting of the results, Mr. Morris congratulated Mr. Kerr upon his election. There is no evidence to suggest that Mr. Kerr complained to the company about any irregularities involving his election to the committee. Having regard to the evidence before us, we are satisfied that Mr. Kerr's election to the Health and Safety Committee played no part in the decision to terminate his employment.

28. In this complaint, Mr. Kerr alleges that on the morning of February 9th, he raised certain safety concerns about an overhead hoist in the plant and a safety fence around a bender machine with Mr. Doug Langelle, the safety coordinator at the plant, and certain other supervisory personnel in the area where these pieces of machinery were located. His complaint alleges, inter alia "not more than a couple of hours into the morning, there were two complaints which I acted on right away. I feel that the company did not like this. I am only safety rep. for two hours and already I am causing trouble." There was also some evidence of a petition regarding the air quality in the plant. That petition, although dated February 7, 1989, was delivered to management officials at least a week after Mr. Kerr's termination on the 10th, and was not signed by Mr. Kerr.

29. The evidence simply does not support the allegation that Mr. Kerr's involvement with any of these safety matters played any part in the company's decision to terminate his employment after the February 9th incident. Even Mr. Kerr's own evidence indicates that as soon as he advised the appropriate supervisory personnel in the area about the hoist, a maintenance employee was dispatched within fifteen to twenty minutes to correct the problem. Similarly, upon advising the area foreman of the need for a safety fence around the bender machine, the foreman indicated that he would take it up with the area supervisor and get back to Mr. Kerr in a couple of hours. Those immediate responses are inconsistent with Kerr's assertion of the "company not terribly appreciat­ing" his "concern for attempts to raise awareness on the part of fellow employees of the safety rules and regulations including the provisions of/and regulations pursuant to the Occupational Health and Safety Act" (to use the words of Mr. Kerr's counsel). Moreover, there is simply no evi­dence to suggest that those who were involved in the decision to terminate Mr. Kerr's employment after the February 9th incident were aware of these safety concerns or Mr. Kerr's "involvement" with these safety matters.

30. This then leads us to the incident on February 9, 1989. There is no dispute that on that day Mr. Kerr swung a hammer which struck the baby finger of Mr. Laarman, a fellow employee, and caused Mr. Laarman severe pain and serious injury, necessitated hospital treatment and time off work. The dispute is whether Mr. Kerr's actions on that day were willful and deliberate or alternatively reckless, negligent and irresponsible as alleged by Wood, or accidental as alleged by Mr. Kerr. Mr. Morris testified that if he had been convinced that that incident was a "pure acci­dent" and "not deliberate in any way" he would not have treated it as "misconduct" on Mr. Kerr's part (within the meaning of the "last chance" given to Mr. Kerr after the five-day suspension in November 1988) and would not have dismissed Mr. Kerr.

31. On February 9, 1989, Mr. Kerr was occupied at his usual job as a cut to length opera­tor. His job may be described as follows: after the machine has cut the steel, the cut pieces fall onto a wooden skid placed at the end of the machine. After a specific number of pieces have been cut and stacked on the skid, Mr. Kerr uses a tow motor to take the skid with its load off its track. He then delivers the loaded skid to the press shop. The work environment at Wood is relatively noisy and ear plugs are worn by employees. In certain areas of the plant such as the press shop area, ear plugs are compulsory. Mr. Kerr's machine although not located in the press shop area, is also very noisy. Mr. Kerr therefore generally also wears ear plugs.

32. As indicated, Mr. Kerr was a proficient, skilled and very fast worker. The employees at Wood are paid a base rate plus a "bonus" or "incentive" based upon the number of pieces pro­duced. Thus, the more pieces cut by Mr. Kerr, the higher his rate of pay. As an attestation of his speed and efficiency at his job, Mr. Kerr indicated that he always made his bonus and was gener­ally the highest paid employee performing this cut to length job.

33. The speed with which Mr. Kerr performed his job because of this incentive system was a critical part of Mr. Kerr's case. Mr. Kerr testified that because he worked fast so as to enable him to earn the maximum amount of his bonus, his movements were continuous and fluid and he could not stop the descent of his hammer until it was too late. According to Mr. Kerr, Mr. Laarman's hand suddenly appeared on the skid he was hammering. The speed at which he was hammering, combined with the fact that his head was down and concentrating on the hammering, prevented Mr. Kerr from seeing Mr. Laarman's hand on the skid until it was too late. The hammer was on its way down and, as he was unable to stop his motion, Mr. Kerr accidentally hit Mr. Laarman's hand on the skid. In his complaint and in the subsequent letter written to Mr. John Wood, the President of the respondent employer, Mr. Kerr also indicated that when Mr. Laarman was hit, it was not a scheduled break and Mr. Laarman "should not have been in my area, or near my machine, much less leaning on my skid."

34. Mr. Laarman and the other witnesses called by the respondent presented a different version of the sequence of events that transpired on February 9, 1989. On balance we prefer their version of the events that day. According to the witnesses called by the respondent, at the time of the incident, Mr. George Parker had entered Mr. Kerr's work area to borrow the tow motor parked there. Mr. Kerr needed the tow motor to take off the load and told Mr. Parker to wait. Mr. Laarman came over to talk to Mr. Parker. When Mr. Kerr returned from having delivered his load, the three men talked briefly. Mr. Kerr then went back to his machine and proceeded to ham­mer the nails on the new skid he had dropped onto the table. Mr. Laarman went over to complain to Mr. Kerr about the noise he was making in hammering the nails. On other occasions, Mr. Laar­man had complained to Mr. Kerr both about the amount of noise he made in dropping the skids and the noise he makes in hammering the nails in the skid. Mr. Laarman is of the view that Mr. Kerr should use the tow motor to position the skids rather than merely dropping the skids. This would be less noisy. Moreover, if Mr. Kerr used the tow motor, rather than merely dropping the skid in place, the nails in the skid would not "pop" and Mr. Kerr would not have to use the ham­mer to nail the "popped" nails back into the skid.

35. At the time Mr. Laarman complained about the noise Mr. Kerr was making, Mr. Kerr had already started to hammer the nails in the skid. Mr. Kerr was standing on one side of the skid and Mr. Laarman on the other. Mr. Kerr testified he did not hear Mr. Laarman. Mr. Laarman tes­tified that he could not recall if Mr. Kerr said anything to him. The witnesses who testified before the Board and those employees who provided the witness statements to Mr. Morris shortly after the incident however indicated that they saw Mr. Kerr and Mr. Laarman speak to each other while the men were standing on opposite ends of the skid.

36. Mr. Laarman testified that Mr. Kerr continued to hammer while moving towards the middle of the skid. Mr. Laarman put his hand on the skid directly in front of him and told Mr. Kerr that there was no need to hammer in that area because it was all smooth and no nails had popped up. Mr. Laarman rubbed his hand over the skid to show Mr. Kerr how smooth it was. Mr. Kerr continued to hammer moving the hammer from the left end of the skid towards the middle and from the top to the bottom as he hammered nails. Mr. Laarman was standing near the top right end of the skid and his hand moved over the top right corner of the skid while he spoke to Mr. Kerr. Mr. Kerr continued to hammer nails and swung the hammer away from the middle end of the skid towards the top right corner of the skid where Mr. Laarman's hand was. At that point, the men were still on opposite sides of the skid although the distance between them had narrowed to approximately three or four feet. Mr. Kerr hit Mr. Laarman's hand breaking the bones in his baby finger and necessitating the removal of the nail on the baby finger and several stitches.

37. At the time he was struck, Mr. Laarman was wearing gloves. Upon being hit, Mr. Laarman cursed Mr. Kerr. Mr. Kerr said it was an accident. Mr. Laarman took off his gloves and saw the blood. Mr. Kerr grabbed some wipes, applied pressure to the finger and took Mr. Laarman to the first aid station.

38. Mr. Morris drove Mr. Laarman to the hospital. During the conversation on the way to the hospital, Mr. Laarman continued to curse Mr. Kerr and stated that he could not believe Mr. Kerr had hit him. Although Mr. Morris could not recall the exact words used, Mr. Morris testified that during the drive Mr. Laarman indicated that he thought Mr. Kerr had acted in a deliberate manner.

39. After dropping Mr. Laarman off at the hospital, Mr. Morris returned to the plant. There he spoke to Mr. Kerr in the presence to Mr. Courtney. Mr. Morris related to Mr. Kerr what Mr. Laarman had said. Mr. Kerr indicated that the matter had been an accident. Mr. Morris referred to Mr. Kerr's previous record and said that this time Mr. Kerr may have gone too far. Mr. Kerr was suspended pending further investigation of the incident, was asked to remove his per­sonal belongings from the plant and was escorted from the premises.

40. Thereafter Mr. Morris interviewed George Parker in the presence of John Courtney. Mr. Parker was unable to shed much light on what had happened because he had not seen any­thing. Mr. Parker had heard Mr. Laarman shout and curse at Mr. Kerr and had heard Mr. Kerr respond that it was an accident. Mr. Parker testified that at that time Mr. Laarman responded by indicating that he did not think it was an accident. Mr. Parker was also able to describe the site and where the two men were positioned when the hammer hit Mr. Laarman's finger.

41. Mr. Morris investigated further. Together with Mr. Parker and Mr. Courtney he went to the plant floor to examine the site where the incident had occurred. He examined the size of the skid, the table on which it had been placed while Mr. Kerr was hammering and its height from the floor. He spoke to other employees in the area to determine if they had observed anything.

42. Two employees spoke to Mr. Morris and recounted what they had seen. The first, Mr. Sajed Karim indicated he saw Mr. Laarman and Mr. Kerr on opposite sides of the skid talking to each other. Mr. Kerr was hammering close in his own corner. He then saw Mr. Kerr bring the hammer down with full force and with a "smile on his face". He saw Mr. Laarman jump and grab his finger. Mr. Karim thought the whole matter was a joke. He did not realize Mr. Laarman had been struck until later. That night, Mr. Morris wrote down a synopsis of what Mr. Karim had said. After making a minor alteration, Mr. Karim, again in the presence of Mr. Courtney, read and signed the synopsis the following day. Mr. Karim testified before the Board and corroborated both what he had seen and what he had told Mr. Morris.

43. Mr. Morris also spoke to Mr. Walter Crawford. Mr. Crawford did not testify before the Board. On February 10th and in the presence of Mr. Courtney he did however also sign the synop­sis of what he had seen. Mr. Morris had prepared this synopsis after his discussion with Mr. Craw­ford on February 9th. Mr. Crawford also made certain changes to the synopsis prepared by Mr. Morris before signing the statement. In particular, Mr. Crawford added the following words.

Bill had said something back and keep [sic) hammering. I did not realize John had been hit until he went up the aisle.

44. At around 6:00 p.m. on February 9th, Mr. Morris again spoke to Mr. Laarman. It was arranged that Mr. Laarman would come to the plant the next day to discuss the incident. Mr. Laar­man spoke to Mr. Morris the following morning at approximately 7:00 a.m. On that occasion, Mr. Laarman would not say whether he thought the incident was deliberate or not. He merely outlined the sequence of events indicating that the men had been standing on opposite sides of the skids, that Mr. Kerr had been hammering on one end of the skids, had moved towards the centre and ultimately struck a blow with "full force" at the top end of the skid where Mr. Laarman had placed his hand. Mr. Laarman also emphasized that the skid had been a new skid, and that because of its smoothness it had been unnecessary for Mr. Kerr to hammer in the area of Mr. Laarman's hand. Mr. Laarman also signed a written statement outlining this sequence of events. Mr. Laarman also spoke to Mr. Morris about the extent of his injury to his finger.

45. Having spoken to these various witnesses, Mr. Morris concluded that Mr. Kerr had acted in a "careless and irresponsible manner". Mr. Morris concluded that Mr. Kerr had been angered by Mr. Laarman's complaints about the noise and at the very least had tried to intimidate Mr. Laarman by striking the hammer close to Mr. Laarman's hand. Mr. Morris thought that Mr. Kerr might not have intended to hit Mr. Laarman's hand, but certainly intended to come close enough to scare him. Mr. Morris concluded that Mr. Kerr's actions had been "deliberate" insofar as he had consciously swung the hammer towards another employee. Mr. Morris concluded this action was deliberate because Mr. Kerr knew that Mr. Laarman was standing next to the skid, had been observed speaking with Mr. Laarman and, given the respective positions of the two men rela­tive to the skid, obviously had to reach over towards the area where Mr. Laarman was standing before swinging the hammer in a downward motion.

46. In his testimony before us, Mr. Laarman also stated that he did view this incident as an accident. He stated that he had told some people, including Mr. Morris, that Mr. Kerr's conduct was intentional. Mr. Laarman's testimony that he told Mr. Morris that he felt Mr. Kerr's conduct was intentional is somewhat inconsistent with a statement which he made to Mr. Kerr when Mr. Kerr visited him at his home several weeks after this incident. Mr. Kerr had secretly tape recorded his conversation with Mr. Laarman on that occasion. That tape recording was proved and admitted into evidence. The conversation between Mr. Laarman and Mr. Kerr on that occasion indicates that Mr. Kerr advised Mr. Laarman about his difficulties in obtaining other employment stating that he felt that Wood was deliberately and maliciously telling prospective employers that he had intentionally hit another employee with the hammer. Thereafter, Mr. Kerr asked Mr. Laarman if he also thought Mr. Kerr had intentionally hit him. Mr. Laarman responded by stating that "I never said it was intentional but I wouldn't say it was an accident either. It happened so fast."

47. Having concluded that Mr. Kerr's actions were at least to some extent deliberate, Mr. Morris was of the view that Mr. Kerr's conduct was in and of itself sufficient to warrant discharge. Mr. Morris was particularly concerned about the safety at the plant and felt Mr. Kerr's unsafe con­duct warranted discharge. When this incident was coupled with Mr. Kerr's previous disciplinary record, especially the November 1988 five day suspension and final disciplinary warning, Mr. Mor­ris concluded that there was no alternative disciplinary response but discharge. He discussed the matter with Mr. Wood on the morning of February 10th. Mr. Wood and Mr. Morris together decided that Mr. Kerr's employment would be terminated. In arriving at that decision there was neither discussion of, nor consideration of, the safety matters referred to in paragraphs 19 to 29. Mr. Kerr was advised of his termination later that day.

48. We have examined and considered the evidence and submissions before us and are satisfied that no part of the reason for Mr. Kerr's discharge was concern over Mr. Kerr's actual or prospective attempts to seek enforcement of the O.H.S.A. or because Mr. Kerr was acting in com­pliance with the Act or the regulations. Wood's treatment of Mr. Kerr was not based either in whole or in part because Mr. Kerr was seeking to exercise rights under the Act. We have con­cluded the respondent did not violate section 24(1) in its discharge of Mr. Kerr.

49. We found Mr. Morris to be a credible witness and are satisfied that he did not consider any of the safety issues identified by Mr. Kerr in his complaint. Indeed, some of these matters were not even known to Mr. Morris at the time of Mr. Kerr's discharge. Mr. Moms considered and assessed the evidence available to him in respect of the February 9th incident after a thorough investigation of the matter. Given the statements made to him by both Mr. Laarman and the other employees interviewed, Mr. Morris' conclusion that Mr. Kerr had acted in a deliberate and not an accidental manner was not unreasonable. The sole reason for Mr. Kerr's discharge was Mr. Moms~ assessment of the February 9th incident and Mr. Kerr's previous disciplinary record.

50. As indicated, we are of the view that in determining whether there was a violation of section 24(1) of the Act, (and absent any consideration of section 24(7) at this initial determina­tion) it is not necessary for us to adjudicate upon the "fairness" of the discharge. Rather our role is to adjudicate upon the "legitimacy" of the discharge to ensure that the "real" reasons for the dis­charge were as put forth by the employer and were not tainted by illegitimate reasons contrary to the O.H.S.A. At this initial determination, we do not consider it appropriate to "second guess" the employer with regard to the appropriateness or severity of the disciplinary penalty. Having heard and assessed all of the evidence however, we wish to note that we have concluded that Mr. Morris' assessment of the February 9th incident was reasonable and accurate.

51. We are of the view that on February 9th, Mr. Kerr knew Mr. Laarman was standing immediately next to the skid. Indeed, Mr. Kerr acknowledged that during his cross-examination.

Mr. Kerr professed not to have heard Mr. Laarman speak to him while he was hammering because he was wearing ear plugs. We do not accept this explanation in view of the evidence of Mr. Kerr's fellow employees who saw him speak to Mr. Laarman while he was hammering the nails into the skid prior to swinging the hammer for that last fatal blow, and in light of Mr. Kerr's own evidence that immediately after hitting Mr. Laarman's hand, he heard Mr. Laarman curse and ask why he had hit him. Mr. Kerr immediately responded "it was an accident". Mr. Kerr was certainly able to hear Mr. Laarman then.

52. In light of all the evidence relating to the sequence of events, we find that Mr. Kerr knew Mr. Laarman was next to the skid and had his hand on the skid while talking to him. Mr. Kerr chose to ignore Mr. Laarman at that point in time. Instead he deliberately reached across the width of the skid, hammer in hand, and swung the hammer in the direction of Mr. Laarman's hand resting on the skid. Given the position of the two men in relation of the skid and the manner in which Mr. Kerr demonstrated he hammered the nails, we have determined that, at the very least, to the extent of swinging the hammer in the direction of a fellow employee whom he knew to be there, Mr. Kerr's actions were deliberate, careless and reckless.

53. We turn now to consider whether the penalty of discharge was appropriate in the cir­cumstances and whether we ought to substitute such other penalty as we might consider "just and reasonable in all the circumstances". Relying upon Commonwealth Construction Company, supra, counsel for the complainant argued that, in the absence of a specific penalty clause in the collective agreement, and pursuant to section 24(7) of the O.H.S.A., the Board has jurisdiction to substitute such penalty as it considers appropriate. At the commencement of the submissions, counsel for the complainant indicated that Mr. Kerr did not seek reinstatement, but was limiting his claim to com­pensatory damages. The parties agreed that the Board would remain seized in respect of that mat­ter.

54. Counsel for the respondent submitted that the Board in Commonwealth Construction Company erred. He argued that if we were to determine that the respondent had not violated sec­tion 24(1) of the Act, it was not, as a matter of law, open to the Board to substitute another pen­alty for the discharge. Alternatively, it was submitted that if the Board did have the jurisdiction and discretion to substitute another penalty, it ought not to be exercised in these circumstances.

55. We have determined that it is unnecessary for us to address counsel's arguments in respect of section 24(7). Assuming we have the jurisdiction to substitute another penalty, in the circumstances of this case we are not prepared to exercise such jurisdiction and grant a monetary award of damages to the complainant. The complaint is therefore dismissed.