Judy Barry v. But-Rite Upholstering Co. Ltd., 1990 CanLII 5742

[1990] OLRB Rep. July 755

2996-88-OH Judy Barry, Complainant v. But-Rite Upholstering Co. Ltd., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Rundle and P. V. Grasso.

APPEARANCES: David C. Leitch and Judy Barry for the complainant; Marilyn Silverman, Alex Mercer and Martin Ryan for the respondent.

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER P. V. GRASSO; July 17, 1990

1. This is a complaint that an occupational health nurse was fired contrary to section 24 of the Occupational Health and Safety Act because she acted in compliance with that Act.

2. Mr. Barry worked for the respondent from March 1987 until her February 1989 dis­charge. Ms. Barry asserts that the reason she was fired was that she was acting in compliance with the Occupational Health and Safety Act (sometimes referred to below as OHSA) in protecting the confidentiality of employee health records. The employer responds that the discharge had nothing to do with the Occupational Health and Safety Act, but was for insubordination in refusing to return the employer's property, i.e. the keys to the filing cabinet holding the employees' health records, and in using abusive language to her supervisor.

3. At the outset of the hearing the employer moved for a dismissal of the complaint on the basis that the complainant had not made out a prima facie case of a violation of the Act. It asserted that the complaint essentially alleged a violation of section 34(1)(d) and that violations of that sec­tion were not within this Board's jurisdiction. Reference was made to the Board's unreported deci­sion in Ontario Hydro, dated January 12, 1989, Board File No. 1950-88-OH. It was argued that section 24 did not cover the complainant's problem and therefore we should exercise our discretion under section 24(3) to not hear the complaint. The second reason for this request was the employ­er's allegation that there were no monetary damages and therefore no remedy available. Although the complainant also asked for non-pecuniary damages for mental anguish and prejudice to future employment opportunities, it was argued that is not the Board's practice to grant such damages. The Board ruled that it would hear the complaint as it was of the view that it was necessary to hear the evidence to determine whether a complaint could be made out. The case cited in support of the motion is distinguishable because, among other reasons, it involved an allegation of a violation of section 34(1)(d) rather than that th~ complainant was dismissed contrary to section 24, because she was acting in compliance with section 34(1)(d), as is the case before us.

The Facts

4. It was part of Ms. Barry's duties as an occupational and safety nurse to maintain pre-ex­isting employee health files and set up new ones. She regularly received doctors' notes and sickness forms during the course of her duties. She dealt with pre-employment physicals, emergency first aid, workers' compensation and insurance matters. In addition, she did counselling and supervised audiometric testing. If management employees requested information, Ms. Barry would prepare updates on the employees' status based on the material in the files. She estimated that during the course of her employment she dealt with approximately 40 percent of the employee health files.

5. On January 24, 1989, a work stoppage involving a bargaining unit of over 400 employ­ees occurred at the respondent's upholstery plant. Ms. Barry was not part of the bargaining unit but was laid-off on February 6, 1988 as a result of the labour dispute. A day or two later Ms. Barry called her supervisor, Ms. Baxter, Manager of Human Resources, to inquire about her final pay. Ms. Baxter advised her to turn over the company's keys so that the company could have access to the files in the health unit. There were two sets of keys in Ms. Barry's possession, one to cabinets in the company doctor's office and one to the cabinets in the nurse's office. The request to return the keys was not specific as to which set was required. The company maintains that the reason the keys were needed was that employees off sick during the labour dispute were still submitting claim forms for their sickness and accident benefits. In order to have benefits continued the procedure was for the employer to return the forms after indicating on them that the employee was still in the employ and that there already had been a claim established.

6. Ms. Barry, in response to the request to return the keys, indicated her concern about confidentiality and said she would get back to Ms. Baxter. Ms. Barry then called the Occupational Health and Safety Branch of the Ministry of Labour and spoke to Dr. Frith, a medical consultant, who suggested she give the keys to the company doctor, which she did within the next few hours. She had a precedent for this from a previous job in which she found herself in a similar position during a labour dispute. She had consulted the Ministry of Labour after being laid off from the ear­lier position and was advised to give the keys to the health unit to the employer's Medical Director, which she did.

7. A further day or two later, Ms. Barry called Ms. Baxter again to confirm whether her money would be available to pick up from the security guard at the picket line. Ms. Baxter advised Ms. Barry to leave the keys at the same time as she picked up her check. Ms. Barry informed her that the keys were with Dr. Mansfield. Ms. Baxter responded that she had no right to do that, that if she turned them over to the company she would then be absolved of all responsibility, including abuse of the information. Ms. Baxter said the company would be taking on this responsibility since Ms. Barry would not be at the workplace any longer. Ms. Baxter put it that Ms. Barry had a pro­fessional responsibility to return the keys. Ms. Barry disagreed. The conversation ended when Ms. Barry told Ms. Baxter to "Fuck-off, you bitch", and hung up. Ms. Barry did not mention the Occupational Health and Safety Act by name in this or her earlier conversation with Ms. Baxter although she did mention her professional responsibility concerning confidentiality.

8. When Ms. Baxter informed her superior, Mr. Mercer, of this conversation, he advised Ms. Baxter to contact the people Ms. Barry had consulted to see what the grounds for the refusal would be as this was now "a different scenario". Ms. Baxter proceeded to contact the Employment Standards Branch, the College of Nurses and the Ministry of Labour. The advice she received in this round of calls ranged from the opinion that the matter was gross insubordination rather than a matter of confidentiality, to the idea that a nurse might feel she had to turn the keys over to a pro­fessional peer because of the nurse-client relationship. The latter was a new concept to Ms. Baxter. At the Ministry of Labour's Occupational Health and Safety Branch, she spoke to Arlene Frehs, a consultant with that branch who confirmed the information about the nurse-client relationship.

9. Mr. Mercer then telephoned Dr. Mansfield. Since Dr. Mansfield raised concerns him­self about returning the keys, Mr. Mercer checked with the College of Physicians and Surgeons. Dr. Mansfield made it clear in his evidence that he considered it Ms. Barry's duty to keep both the doctor's and the nurse's records, both of which he considered to be of the "strictest confidentiali­ty". He acknowledged that there were times when he would release information from the files to the employer, but indicated that the control was in himself as a medical professional. He stressed that the files were not his or the employer's records but the employees' records. He was very reluc­tant to give over the keys at all, but when the labour dispute became protracted and the College of Physicians and Surgeons told him that he would be able to turn over the keys, he did so. He would have preferred to hand them over to another medical professional who would be in charge of the files.

10. Arlene Frehs, the Ministry of Labour consultant to whom Ms. Baxter spoke after Ms. Barry had returned the keys to Dr. Mansfield, testified that she felt that the material in the employee health files, as she understood it, would have been confidential. She considers a medical record to be any notation by a health care provider about a patient or information about that patient's condition given to that provider. She recalled that Ms. Baxter was in personnel and said, "I believe she wanted access and I was explaining why management should not have access."

11. Mr. Mercer testified that Ms. Barry was fired because of her work performance. The letter of termination reads as follows:

Several conversations have taken place between you and your superior Ms. Baxter regarding your returning the keys to your office while you are on lay oft. You were evasive and indicated you did not wish to return them due to the possible confidentiality aspect of the medical unit. You were told we required access to finalize employee claims and/or inquiries.

Ms. Baxter made it clear to you that we wanted and indeed required the keys.

On the ninth (9th) of February 1989 you called to inquire about your final monies and spoke to Ms. Baxter (who was in my office at the time of the conversation). She advised you that steps would be made to ensure any monies owing you would be available for you to pick up and she told you to bring the office keys and/or other Company property in your possession needed to run or maintain the health unit. You said that you, on third party advice had given the keys to Doctor Mansfield contrary to my instructions through Ms. Baxter. You also argued with Ms. Baxter and engaged in foul and abusive language toward Ms. Baxter who is your superior. You should also be aware that we have investigated your claim through the Ministry of Labour Occu­pational Health branch and also the College of Nurses for the Province of Ontario and although you may have felt bound while at work with the ethical nurse/client relationship you were absolved from such a responsibility while not employed. In short, once you gave the keys to the Company, the Company.assumed such a responsibility.

Based on your non-cooperative attitude and your refusal to follow instructions and your abusive language to your superior your employment is being terminated effective immediately.

Please return any and all Company property and all monies owing you will be sent to you as expeditiously as possible.

Mr. Mercer considered Ms. Barry to have been uncooperative during this incident and on previous occasions. He viewed the refusal to give back the keys and the conversation with her supervisor as insubordinate and unprofessional. In his words, "there was no need for it to go that far." In sum, he felt that there was no positive balance to outweigh the incident, although Ms. Barry had no dis­ciplinary record.

12. Part of the background to this dispute relates to the hierarchy of control of substances used in the workplace depending on how, if at all, they are dealt with by regulation under the Occupational Health and Safety Act. There is a general duty on employers and supervisors in sec­tion 14(1) of OHSA to take every precaution reasonable in the circumstances for the protection of a worker and on a worker in section 17(2) to work in a way that does not endanger himself or other workers. There are more specific duties throughout the OHSA for all concerned where further control is prescribed by the regulations. Substances controlled by regulation 654/86 are referred to below as "controlled substances" and those with a specific regulation of their own pursuant to the power in section 41(2)(14), such as lead (Reg. 536/81), as "designated substances".

13. At the time of the events outlined above noise was the subject of proposed regulation as a designated substance. The draft of a proposed regulation entered into evidence bore the date July 7,1986, over a year and half prior to Ms. Barry's lay-off. However, it has not yet been made law. Ms. Barry estimated that it had been proposed for five years in 1988. The employer did not dispute that it was likely for this regulation to be relevant to the employer's plant if ever given the force of law. Even without this regulation, the employer had engaged in some audiometric testing of employees. Pertinent sections of that proposed regulation provided for medical monitoring, the records of which were to be kept in a secure place by the physician who conducted the examina­tion. Provisions for disclosure of the results to the employer (s. 17) are framed only in terms of advice as to whether the worker involved is fit for work in noise exposure or not, or with what limi­tations.

14. Mr. Mercer had never heard of any test being taken under the Occupational Health and Safety Act in the employer's workplace, the records of which could be in the files. In general, he considered the records under Ms. Barry's control in the health unit to be analogous to personnel records and was reinforced in this view by the fact that Ms. Barry never made an issue of confiden­tiality to his or Ms. Baxter's knowledge. The company makes a distinction between outside doc­tors' return to work slips which it does not consider confidential and records of examinations by the company doctor, which it does.

15. Ms. Baxter felt Ms. Barry's respect for confidentiality was suspect because of the fact that on a number of occasions she had overheard Ms. Barry discussing what Ms. Baxter considered to be confidential information in a loud voice. Ms. Baxter also said that in Ms. Barry's absence she would use the files in the health unit for such purposes as review of medical information concerning the duration of absence. She says the medical cabinets were unlocked, although the health unit and desk were locked. An employee of the respondent who performed hearing testing had access to the files to put records of the hearing tests in the files as well. Ms. Barry also had help from non-medi­cal personnel to clear up a filing back-log and there were files from former employees under the bed in the health unit which were freely accessible. Further, there were notations from others on her supposedly confidential nurses' notes.

16. Ms. Barry's response to the above concerns is that she used her judgement as to what could be disclosed. While she acknowledged that she carried on certain conversations in front of other people, for instance as to whether a medical return to work slip was adequate, she main­tained that she did not disclose any information that was actually confidential. She emphasized that when some employees handed in their disability insurance forms to people other than a health pro­fessional that fact indicated their choice to disclose that information to the employer. She consid­ered similar information confidential when given to her directly. She maintains that she locked the files and drawers and the health unit door when she left the health unit each time. This was corro­borated for a short period of time by Ms. Schneider who helped her do filing just prior to the lay­off.

17. Ms. Barry's concern was partly that she would be prosecuted under either the Health Disciplines Act or the Occupational Health and Safety Act if she breached confidentiality. This was based largely on the fact that she did not know exactly what was in the files and felt that there might be information that she was precluded from disclosing.

18. There are provisions with respect to confidentiality binding doctors and nurses under

the Health Disciplines Act. Reg. 448, R.R.O. 1980, section 22, defines professional misconduct for

a doctor to include:

22. Giving information concerning a patient's condition or any professional services performed for a patient to any person other than the patient without the consent of the patient unless required to do so by law;

For nurses the parallel definition is R.R.O. 1980, Reg. 449,section 21, which provides in part:

21. For the purposes of Part IV of the Act, professional misconduct" means,

(k) Failure to exercise discretion in respect of the disclosure of confidential information about a patient;

(m) conduct or an act relevant to the performance of nursing services that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful. dishonourable or unprofessional. 0. Reg. 578/75, s.21.

19. Despite the fact that Ms. Barry did not know if the noise regulation had been pro­claimed in law, and therefore whether noise was yet a designated substance, she was of the view that the medical files should be kept in compliance with the OHSA, as if it had been law. Further­more, she had seen "all kinds of things spread around" in the plant and did not know whether they were designated substances.

20. Norman Carriere is the health and safety coordinator for District 6 of the United Steel­workers of America which represents a bargaining unit in the respondent's plant. Mr. Carriere's evidence established that there where Material Safety Data Sheets ("MSDS") for two designated substances, trichloroethane and lead styphnate. and many controlled substances, posted in the respondent's plant. Mr. Mercer testified in reply that the two designated substances were rarely used.

Argument

21. The respondent argues that neither the complainant nor the respondent were motivated in any way by reliance on the OHSA or in reprisal for anything to do with the OHSA, that this is a wrongful dismissal case in the wrong forum. It submits that there is no prima facie case of a viola­tion of the OHSA, either in a technical sense or when viewed from the policy perspective of the purpose behind the legislation.

22. Specifically, the respondent argues that Ms. Barry was not acting in compliance with the OHSA. Counsel referred to Ministry of Community and Social Services re. Douglas Lloyd, [1988] OLRB Rep. Jan. 50 at paragraph 18. Counsel put it that the highest it can be put is that Ms. Barry thought there might have been something to protect in the files. There was no evidence that any of the things that were in the files were in the nature of an exam, test or X-ray taken in accordance with the Act. The existence of controlled or designated substances in the workplace is said not to be enough; it is too tenuous a connection to bring the case within the ambit of section 34(1)(d). Similarly, she argues that one cannot be acting in compliance with the proposed noise regulation since it is not yet law.

23. Secondly, counsel argues that under section 24, in order to establish a violation, the dis­missal had to be because she was acting in compliance; Baxter and Mercer had to know she was acting in accordance with the OHSA and have that as part of their motivation. It is submitted that this was not the case.

24. The respondent asserts that the complainant used the convenient excuse of the Act to justify her conduct in retrospect, that she was motivated by anger at her lay-off rather than by OHSA considerations. Employer counsel points to the evidence set out in paragraph 15 above to show that there was no occupational health and safety concern until after the discharge.

25. Counsel submitted that the intent of section 34(1)(d) is to prevent improper disclosure to third parties other than the employer. Counsel compares section 34(1)(d) to the regulations under the OHSA (both the existent lead regulations (O.R. 536/81, s.76(1)) and the proposed noise regulations (see proposed section 17(4)). Unlike the designated substance regulations, it does not provide specific prohibitions against disclosure by the employer.

26. Counsel for the complainant argued that Ms. Barry knew at the time of her lay-off that there were restrictions on access to medical records generated under the Occupational Health and Safety Act. She knew of section 34 and the controlled and designated substance regulations. Sec­ondly, she knew about the audiometric testing of workers already done at the respondent's work­place and that there was a proposed regulation governing noise which would require audiometric testing. Thirdly, she had been told by the doctor at the Ministry of Labour who was responsible for enforcing the OHSA that she should not return the keys to the employer directly, but to its medi­cal director.

27. Counsel submits that Ms. Barry did not know what medical information was in the cabi­net, apart from that which she either put there herself or had reason to retrieve. She did not know whether or not medical tests, exams or X-rays under the Act had been ordered prior to her employment in March 1987. She had a reasonable concern about protecting confidentiality, an important concept under the OHSA, and should therefore be found to have been acting in compli­ance. He argues that the standard of correctness in Ministry of Community and Social Services, supra, is overly restrictive in requiring that the employee be correct as to her duty under the OHSA in order to be found to be acting in compliance.

28. The evidence of the numerous hazardous substances of the type for which tests may have been ordered under the OHSA, counsel submits, underscores the fact that her concerns were appropriate. More importantly, he argues, the evidence challenges Mr. Mercer's credibility. On cross-examination he would only admit the existence of one controlled substance. Counsel submits that he is unlikely to know if anyone tried to assess the hazards he did not know existed.

29. Counsel underlines the point that Ms. Baxter spoke to Arlene Frehs of the Ministry of Labour before the decision to discharge. Frehs' uncontradicted evidence was that she explained that there were confidentiality requirements under the Occupational Health and Safety Act. Coun­sel submits that this counters the employer's submission that the OHSA was not in its mind when the decision to discharge was made.

30. Counsel argues that Firestone Canada Inc., [1985] OLRB Rep. July 1044 establishes the proposition that bad faith is not required. The fact that the disciplinary response was prompted by an act authorized by the statute is enough. He refers to Black & MacDonald Ltd., [1983] OLRB Rep. Dec. 1971 for the proposition that the "taint" theory applies to cases under the Occupational Health and Safety Act. He refers to Commonwealth Construction Co., [1987] OLRB Rep. July 961 to argue that the Board can substitute a penalty even if it is found that she was not acting in com­pliance with the Act, if it thinks the penalty was excessive. In other words, the Board does not need to find a section 24(1) violation to apply section 24(7).

31. Counsel refers to the case of R. v. Cancoil Formal Corporation and Parkinson, O.A.C.

225 (C.A.) by way of analogy. This case dealt with officially induced error as a defence in a crimi­nal prosecution under the Occupational Health and Safety Act, where an accused reasonably relied on an erroneous legal opinion of an official responsible for the administration or enforcement of a law. Ms. Barry went to what she thought was the official source as to the law, the Ministry of Labour. She got a direction about what to do. To her, confidentiality was one indivisible concept. She did not break it down with Dr. Frith as to categories of confidentiality, whether her responsi­bility under the standards of practice under The Health Disciplines Act as a nurse, or under the Occupational Health and Safety Act. Counsel argues that she is entitled to rely on the idea that Dr. Frith has in mind the requirements of the statue since it is his job to explain and enforce the legisla­tion.

32. Counsel referred to a decision of the Director of the Occupational Health and Safety Branch under section 32 of the Act in General Motors of Canada Ltd., an appeal of order No. 0197EA, decision dated March 15, 1984, which upheld an order prohibiting a company doctor from disclosing blood-lead test results taken under the lead regulation to the company's industrial hygienist based on section 34(1)(d). The decision draws a distinction between non-health and health personnel, the latter category including registered nurses, but not industrial hygienists. Dis­closure was held to be permissible to health personnel (including their clerical help), but not to non-health personnel.

33. Counsel included an excerpt from the report of the Commission of Inquiry into the con­fidentiality of health information, under Commissioner Krever (the "Krever Commission"). At page 276 the report states that employees but not employers should have access to employee health records. Counsel suggested that recommendation 159(1), which Commissioner Krever described as not conflicting with the OHSA, incorporates an interpretation which is appropriate for section 34(1)(d). This recommendation is as follows:

That the Joint Health and Safety Committee or Health and Safety Representative may not dis­close information concerning the health of an employee to the employer or to other employees without the consent of the worker to whom the information relates.

Counsel argues that the essential point is that the employer's position on access to health records is not supportable. It is not a question of ownership. Counsel refers to page 168 of the Krever report as follows:

The obligation of confidentiality is not confined to the health professional employee of an employer.... A similar duty exists for any person who is responsible for the storage and handling of employees' health information obtained or collected by those employees providing a health-related service to other employees.

A view often expressed is that ownership of records entitles the dwner to control over and access to them. Some employers pay lip service to the concept of confidentiality but insist on retaining a key to the cabinets in which the health information is kept, "in case of fire". Other employers refuse to allow nurses to keep health information in locked cabinets....

34. As to remedy, counsel refers to Jacmorr Manufacturing Ltd., OLRB Rep. [1987] Aug. 1086 for the proposition that we have jurisdiction to grant damages for mental distress, although the Board declined to award them on the facts of that case. He further refers to Slaight Communications Incorporated v. Ron Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, for the proposition that the Supreme Court of Canada has authorized remedies which make some attempt to stop the damage to reputa­tion which follows on an unjust dismissal. Counsel further submitted excerpts from texts on wrong­ful dismissal and labour arbitration to support his submission that although the complainant's lan­guage was serious, it was provoked by Ms. Baxter's lack of knowledge about a nurse's duty about confidentiality, was isolated as well as private, and should not therefore warrant dismissal.

Conclusions

35. The Board must determine whether Ms. Barry's discharge should be allowed to stand

under section 24 of the OHSA. The complainant characterizes her actions as acting in compliance

with the Act, specifically section 34(1)(d) and the employer's response as prohibited by section 24.

36. The most centrally relevant sections of the OHSA are sections 24 and 34(1)(d) which 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.

34.-(1) Except for the purposes of this Act and the regulations or as required by law,

(d) no person shall disclose any information obtained in any medical examina­tion, test or x-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a par­ticular person or case.

37. The employer's argument is not only that the behaviour does not technically fit within section 34(1)(d), but that the complainant is guilty of bad faith - that the motivation for Ms. Barry's actions concerning the keys was anger and not professional responsibility. Although it is unlikely that Ms. Barry was (or that anyone in a similar position would be) grateful to be without remunerative employment during the lay-off, we do not accept that this had eclipsed her genuine concern for her professional responsibility under the OHSA in the matter. The fact that she con­sulted the Occupational Health and Safety Branch of the Ministry of Labour, based on her previ­ous experience in a similar situation, and the fact that she returned the keys promptly to Dr. Mans­field counter the suggestion that Ms. Barry was simply "making trouble". The delay caused by Dr. Mansfield's own concerns about turning over the keys cannot be attributed to Ms. Barry. The evi­dence, taken as a whole, indicates that although Ms. Barry lost her temper with Ms. Baxter on the phone, she was genuinely motivated in the first instance by a concern for her duty as an occupa­tional health and safety nurse.

38. The majority of cases decided to date by the Board under section 24 of the OHSA have dealt with refusals to work under section 23 of the Act. The cases claiming protection for activity not characterized as refusal to work under section 23 of the ORSA, but acting in compliance with some other section of the OHSA are fewer.

39. In Imperial Oil, [1982] OLRB Rep. April 580, an employee whose duty was to issue safety certificates under the confined space regulation under the Act refused to issue one because he thought a space was unsafe. The company maintained there was no hazard and disciplined him for not issuing the certificate. The Board considered the matter in the framework of acting in com­pliance with his duties under section 72 of the industrial regulations under the OHSA which deal with confined space. The Board decided that he had an honest health and safety motive throughout and that while he might have been over-cautious and wrong, he did have some reason to believe that the situation could pose a hazard to the workers who would be in the space. At paragraph 25 the Board said as follows:

in our view, it is inconceivable that the Legislature could ever have intended that a person in Mr. Frangis' position could be disciplined for an honest and bona fide exercise of his responsibil­ities under section 72 of the Regulation. As the "competent person" designated to satisfy him­self and certify to the safety of the workplace, it would be anomolous [sic] if the raising of a bona fide safety concern could result in discipline - even if he is wrong in his assessment of the situation. On the contrary, it is our view that such concerns should be raised and resolved with his employer. This does not mean that Mr. Frangis' has a licence for insubordination. If his refusal were frivolous, vexatious or improperly motivated, the Act would not protect him, an in appropriate circumstances, a prolonged debate might well raise a doubt about an employee's motives. Nor does it mean that the designated individual is the last word on safety at the work site. Another competent person could certify the safety of the situation (as could have happened here) and the lack of foundation for a refusal to issue a permit or the inability to comprehend or accept the advice of more experienced persons might well raise doubts as to the individual's competence and could be dealt with accordingly. But in our view, Mr.jH jMFrangis was seeking compliance with the Act, and on the evidence his position cannot be characterized as frivolous.

A disciplinary response from his employer - and this is how Mr. Lingley characterized it - was uncalled for.

[emphasis added]

A major difference between that case and the one before us is that no one argued in Imperial Oil that the complainant was wrong as to whether he had any duty under the OHSA, which is the thrust of the employer's argument before us.

40. In Butler Metal Products, [1988] OLRB Rep. Oct. 1003, a robotics supervisor was dis­ciplined for leaving the workplace rather than obey an order to supervise work that he thought was unsafe. The Board found that this was not acting in compliance with the OHSA because the proce­dure was safe, i.e., he had been wrong in his assessment of the situation. Nonetheless, the Board found that his actions did constitute seeking enforcement of the Act and therefore a violation of section 24 was made out. At paragraph 29 the Board said as follows:

Although we have determined that Heath's [the complainant] actions were not in compliance with the Act or the Regulations, we are satisfied that his conduct during the week in question was motivated by genuine safety concerns. In determining that the work on the gates while pro­duction was running was unsafe, Heath was acting in good faith. He raised his safety concern with his superiors and it was because of this concern that he refused to give his permission for the work to proceed.... By refusing to give his permission to work on the gates, Heath's objec­tive was the enforcement of the OHSA.

This is essentially the same approach as in Ministry of Community and Social Services, supra, using a test of correctness for "acting in compliance" but not for "seeking enforcement". In paragraph 19 the Board underlined that an employer cannot legally discipline a worker who is seeking enforcement of the Act, even if the concern of the worker is not found ultimately to be a contra­vention of the Act. Conduct which seeks enforcement of the Act is protected activity in order to encourage workers to raise health and safety concerns with their employer in order to reduce the likelihood of injury in the workplace. (See Commonwealth Construction Co., [1987] OLRB Rep. July 961.)

41. Ms. Barry relies on the provisions of section 34(1)(d) to support her claim that she was acting in compliance with the OHSA. The evidence was sufficient to raise the possibility that the health records in the workplace included information covered by section 34(1)(d). It cannot be put higher than that, nor was it argued to be higher than that. There are numerous controlled and at least two designated substances present in the workplace and therefore the prescription as to medi­cal monitoring in the relevant legislation could have resulted in such information being in those health records. The employer argues that if there were no records collected under the OHSA, there could be no duty under the OHSA with which she could have been acting in compliance.

42. Ms. Barry was taking an approach to section 34(1)(d) which can be described as "better safe than sorry". Because she could not be sure that there were no records taken under the OHSA in the cabinets, she took the cautious route. She knew that the only way she had to ensure that records were not irretrievably disclosed in an improper manner was to take precautions with the keys. We find that this was a genuine effort on Ms. Barry's part to comply with the OHSA. Fur­ther, it is consistent with the objectives of section 34(1)(d). The section is grounded in an attempt to balance the need for the various forms of collection of information necessary to the scheme of the Act, including medical monitoring, with the competing need for respect for various kinds of privacy, confidentiality and property in information.

43. Although the employer maintains that any duty under section 34(1)(d) did not extend to prohibit disclosure to it, it did not dispute that Ms. Barry would have had a duty under section 34 (1)(d) as custodian of the health records if any documents protected under that section had been in the files. It may be that Ms. Barry was seeking the enforcement of the OHSA by trying to prevent improper disclosure under the section in phoning the Ministry of Labour to ascertain what her duty was. However, argument was not specifically addressed to this characterization of her actions, but was based on the notion that she was acting in compliance with the OHSA. (The issue of whether or not she was acting in compliance with her duties under the Health Disciplines Act is not for us to decide.) In the view we ultimately take of the matter, it is unnecessary to address whether Ms. Barry's activities should technically be characterized as "acting in compliance" or "seeking enforcement", or to address Mr. Leitch's argument that the standard of correctness for "acting in compliance is incorrect. Given our view of section 24 (7), set out below, the result in this case would be the same, and it is therefore unnecessary to make a finding in this regard. In the result, it is also unnecessary to determine the scope of section 34(1)(d) in regards to disclosure to the employer as opposed to disclosure to outsiders.

44. Section 24(7) is a specific addition to the already wide discretion of the Board under its remedial power under section 89(4), which is imported into the OHSA for purposes of complaints under section 24. It has been referred to in a variety of circumstances in the existing Board juris­prudence. For instance, in Ministry of Community & Social Services, supra, at paragraphs 26 and 27, after finding no violation of the OHSA because of the provisions of the OHSA relating to cor­rectional officers, the Board commented as follows:

This subsection [24(7)] gives the Board a very broad discretion. In reviewing all of the circum­stances of a particular case, the Board undoubtedly would give some weight, depending on the penalty imposed, to the fact that a complainant was disciplined for refusing an order directing that person to act contrary to the Act or to the fact that a complainant was motivated by a health and safety concern and was acting in good faith.

See also Commonwealth Construction Company, [1987] OLRB Rep. July 961 where the Board clearly stated that the remedial power in section 24(7) is available whether or not a violation of the OHSA has been found. At paragraph 34, after citing numerous previous cases consistent with that approach, the Board observed:

It subsection 24(7) only applied if subsection 24(1) had been contravened, it would be redun­dant, as the Board already has such power in these circumstances, by virtue of subsection 24(3), which makes all of the subsections of section 89 of the Labour Relations Act, except subsection (5), applicable with all necessary modifications to a complaint filed under subsection 24(2). Thus, the Board's power to remedy the contravention of subsection 24(1) by, for example, sub­mitting a lesser penalty, would come from subsection 89(4) of the Labour Relations Act as incorporated into section 24 by subsection 24 (3).

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.

The circumstances of that case included a finding that the complainants, acting as self-appointed safety representatives, were not exercising rights under the OHSA when doing safety inspections on company time. However, the Board exercised its discretion to reduce the discharges to five day suspensions for two out of the three complainants after considering all the circumstances, including prior disciplinary records.

45. In The Corporation of the City of Ottawa, [1986] OLRB Rep. June 798, the complain­ants were found to have been insubordinate, and no violation of the Act to have occurred. How- ever, they had been acting on advice relating to the OHSA on which the Board found it was rea­sonable to rely. It exercised its discretion to reduce the penalty from discharge, ordering reinstate­ment without back pay. In doing so the Board commented that if the Board were satisfied that the complainant was simply acting on his previously articulated threat "to tie [his supervisor]" up so badly with Bill 70 that he couldn't move, any thought of mitigation of the complainant's penalty would be out of the question."

46. In a case where the Board found that a continued refusal to work was not based on rea­sonable grounds, and thus no violation had occurred, Camco Inc., [1985] OLRB Rep. Oct. 1431, the Board commented that it must go on to consider the choice of penalty. Because it was mild, it chose not to interfere. Similarly in Baltimore Aircoil of Canada, [1982] OLRB, Rep. Mar 327, the Board found that no violation of the OHSA occurred where the complainant was disciplined for unauthorized self-help on safety matters, assessed the penalty imposed as warranted, and declined to interfere.

47. In the above cases in which the discretion to modify the penalty was exercised, there was a clear nexus to health and safety. Despite the lack of finding of a violation, each case involved a purported, usually somewhat mistaken, but in some sense bona fide, attempt to exercise rights under the OHSA. As it was put in Ministry of Community and Social Services, supra, it is appropri­ate under this section to give some weight to the fact that a complainant was acting in good faith, motivated by a health and safety concern. Where this is not the case the Board will appropriately consider the absence of a bona fide health and safety concern, or lack of good faith in making the complaint, as a weighty factor which might lead to its declining to exercise this discretion as it did in The Corporation of the City of Ottawa, supra.

48. On our facts, we have found that the complainant was attempting to comply with the OHSA in returning the keys to Dr. Mansfield instead of to the employer directly. Despite the fact that we have not made a positive finding that there was a duty under the Act in which she was act­ing in compliance, we have found her to be sincere in her actions. We find that she was acting in consonance with the purpose of section 34(1)(d) as to confidential records and in a bona fide attempt to comply with the confidentiality provisions of the OHSA. This is a case in which, viola­tion or not, it is appropriate to review the penalty imposed under section 24(7).

49. It is clear that Ms. Barry's employment was not in jeopardy prior to the "keys inci­dent". She had been laid off rather than fired shortly before, and she had no disciplinary record. Although Mr. Mercer was disenchanted with her performance in general, she was not on notice of this dissatisfaction, and had no reason to believe she would not be recalled at the end of the labour dispute. Although her language to Ms. Baxter was clearly uncalled for, it was not argued that she would have been discharged for this alone. We are of the view that the employer overreacted and gave inadequate weight to the seriousness of Ms. Barry's concerns for confidentiality, supported as they were by advice from the Ministry of Labour, in its possession prior to the discharge. How­ever, we are of the view that Ms. Barry's loss of temper and abusive language are deserving of some discipline, although not of discharge. In this context we would observe that the whole dispute could have been avoided by the exercise of more objectivity on both sides. At the time of the tele­phone conversation which prompted the discharge, the keys had already been returned, albeit not to Ms. Baxter directly. Ms. Barry was voicing concerns that the employer knew by the time of the discharge to be legitimate for an occupational health and safety nurse, even if it disagreed as to the extent of her obligation. On the other hand, if Ms. Barry had explained the situation more thor­oughly, in a dispassionate manner, even if she did not feel it should have been necessary, the mat­ter would not likely have come to such a precipitous head. We therefore order all record of her dis­charge removed from Ms. Barry's employment record. Given the absence of a disciplinary record, we would substitute instead a written warning for her use of inappropriate language in expressing her disagreement with Ms. Baxter. Ms. Barry did not request reinstatement as she has obtained other employment. We make no order for monetary compensation as there were no monetary losses. In all the circumstances, we do not find this an appropriate case for further remedial orders.

DECISION OF BOARD MEMBER JUDITH A. RUNDLE; July 17, 1990

1. I disagree with the majority findings in paragraph 48 and dissent from that finding for the following reasons.

2. Two facts appear to have been overlooked in the majority decision. Ms. Barry, prior to advising the company that she had returned the keys to Dr. Mansfield, advised the union president (who was on the picket line) of her actions. Secondly, there was an internal reorganization which changed Ms. Barry's reporting relationship requiring her to report to Ms. Baxter. An arrangement which was clearly not to Ms. Barry's liking. These are facts which clearly go to the very heart of Ms. Barry's motive.

3. This is a case which turns on an assessment of the credibility of the central witness, Ms. Judy Barry. In assessing Ms. Barry's evidence I found her to be less than credible. With respect to the majority view this is a case where truth is stranger than fiction.

4. The keys to the filing cabinets which Ms. Barry was requested to return are the property of the company as were the records contained in those cabinets. Ms. Barry's insubordination with respect to the request to return "company property" was worthy of discipline. Her concern about confidentiality of the health records was based on the Health Disciplines Act and her responsibility in that regard. Her claim under the Occupational Health and Safety Act was an ex post facto ratio­nalization of her actions designed solely to obtain a remedy unavailable to her by any other means.

5. Ms. Barry did not at any time during the prolonged discussions with the company, make reference to section 34(1)(d) of the Occupational Health and Safety Act. An extensive review of Ms. Barry's resume as well as her verbal evidence led the Board to believe that Ms. Barry consid­ered herself to be very knowledgeable in the field of Occupational Health and Safety. Why then did Ms. Barry not initially advise the company of her reliance on section 34(1)(d) of the Occupa­tional Health and Safety Act with respect to the records? By doing so Ms. Barry would have placed herself under the full protection of the Occupational Health and Safety Act. Clearly it was not in Ms. Barry's mind that the company was in violation of any aspect of the Occupational Health and Safety Act - her actions were clearly ex post facto.

6. Ms. Barry as a trained company "professional" in the field of Occupational Health and Safety ought to have known if "any medical examination, test or x-ray of a worker made or taken under this Act" (section 34(1)(d)) had indeed been ordered. I do not find Ms. Barry's evidence with respect to her familiarity with only 40% of the employees records credible. It was her respon­sibility to familiarize herself with any orders directed under the Act. She certainly took a keen interest in the audiometric testing, which, because noise has not yet been ruled a designated sub­stance, does not therefore fall under the ambit of 34(1)(d). Ms. Barry's evidence was that she did not know if any tests such as those contemplated under section 34(1)(d) had been ordered, yet this is the very section she relies on as the basis of her complaint.

7. The evidence clearly states that the records Ms. Barry was protecting were from time to time accessed by non-medical personnel who completed insurance claims from the material claimed in the Health office. The physician's medical records were kept in a separate locked filing cabinet in a locked room adjacent to the health office and were never accessed by the company. Varying degrees of confidentiality with respect to health records were the standard of the health office.

8. I disagree with the majority finding in paragraph 48. Ms. Barry was not acting in com­pliance with the Occupational Health and Safety Act in returning the keys to Dr. Mansfield. I con­clude from the evidence that the Occupational Health and Safety Act was not in Ms. Barry's mind at the time of her actions.

9. On the evidence before us there is no clear nexus to health and safety in this case and no bona fide health and safety concern as contemplated by the Occupational Health and Safety Act in this. There was certainly a lack of good faith as evidenced by Ms. Barry's true reasons for bring­ing this complaint.

10. As there is no clear nexus to health and safety there is no Board jurisdiction to review the penalty imposed under section 24(7).

11. For the above reasons I would have dismissed the complaint.