Deborah Brown v. Trelford Automobile Limited, 1990 CanLII 5760

[1990] OLRB Rep. November 1155

3032-89-OH Deborah Brown, Complainant v. Trelford Automobile Limited, Robert Trelford, Respondents

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and E. G. Theobald.

APPEARANCES: Linda Vannucci-Santini for the applicant; Edmund J. Stevens, Robert Trelford, Peter Trelford, Ken Lawrence, Janet Duff and Mark Livingston for the respondent.

DECISION OF THE BOARD; November 13, 1990

1. This is a complaint under section 24 of the Occupational Health and Safety Act to the effect that Deborah Brown was fired because she refused to do unsafe work and not as the employer maintains because of overall poor performance.

2. Peter Trelford hired Ms. Brown to assist at the Trelford family's car and truck dealer­ship in Tara, Ontario on May 2, 1988. She had a variety of regular duties which included answering the phone, assisting in the parts department, typing, filing and computer ordering work. In Sep­tember of 1988 she was given an additional duty by Robert Trelford (Peter's father), taking quar­terly inventory of the paint supply. This is the task which she refused to do on March 27, 1989 cit­ing health reasons.

3. The paint inventory is necessary because the mechanic in the Trelford's employ is partly paid on a basis related to profits in the paint area. In order to calculate his pay, it is necessary to know how much paint has been sold and used. To ascertain this, it is necessary to open all cans of paint that have been used since the last inventory and estimate the amount of paint used and record it as the basis for the pay calculations. This is a job that takes somewhere between four hours and two days, depending on who does it. Ms. Brown's experience was at the upper end of this spectrum.

4. The paint is kept in a room that is approximately five feet by twelve feet, ventilated by the door and two vents. The paint room is intended as a mix room and not primarily as a place where a person would stand for hours. A Ministry of Labour health and safety inspection on November 11, 1989, which included the paint room, resulted in a report which recommended that paint mixing be done in the spray booth with respiratory protection and the provision of mechani­cal ventilation to the paint room. This is now being investigated by the employer.

5. Others have done the paint inventory without complaint, but Ms. Brown suffered signif­icant symptoms in performing it. It is common ground that the fumes in the paint room could cause symptoms varying according to the individual and that polyisocyanates, which are designated sub­stances under the OHSA, are present in some of the material stored in the paint room.

6. Ms. Brown worked on paint inventory three times, in September, 1988 and January and March 1989. She did not wear respiratory protection as she believed none was available. The mechanic had offered her a dust mask but had indicated he regularly needed the respirator he used when spraying paint. In January she complained to Peter Trelford and asked him if he would get someone else to do the inventory because she could not stand the fumes. She told him about headaches and dizziness during and after the inventory. He said he would like her to continue even though he knew the fumes were bad. He also said he would speak to his father and let her know the decision before the next count which he did not do. She also mentioned symptoms to the parts manager and to the mechanic. On the Friday before the March inventory, Mr. Trelford, Sr. reminded her about the inventory and she asked if his son had spoken to him. He said yes, and that he would have Mark, the mechanic, clean up the room so she could do it on Monday. How­ever, Robert Trelford testified that Peter had not discussed her previous problems with him when he asked her to do it in March. He was aware she had had problems with fumes, but was not aware she did not want to do the task.

7. On the day of the inventory in March Ms. Brown found the paint room full of fumes and messy although Mark Livingstone had cleaned up somewhat and had left the door open to atr out the room. She started to do the inventory on the Monday, but "did not succeed the whole day". She told Ken Lawrence, the parts manager, that she was "finished" because of how she was feeling. She went to Peter Trelford and said that she refused to do the inventory anymore because of the fumes. She tried to speak to Robert Trelford, but he was not in, so she resolved to speak to him the next day. She felt sick to her stomach, and had headaches and dizziness, continuing into the evening. Neither she nor the Trelfords were aware of the provisions of the OHSA regarding work refusal at this time. Training under the Workplace Hazardous Materials Information System (WHMIS) had not started by this time either. Since no monitoring was done it is impossible to determine if the level of exposure exceeded that permitted by the Regulation respecting Isocyanates made under the OHSA, Ontario Regulation 455/83 as amended by 0. Reg. 23/87.

8. The following day, March 28, 1989, Ms. Brown went looking for Robert Trelford, and found him alone inspecting a new lot of used cars in the parking lot and asked to speak to him. Ms. Brown testified that he said, "Speak to me now." Mr. Trelford describes her manner as "deter­mined and abrupt" - that she stormed up to him. She says she was nervous because she did not know what he was going to say and it was his decision where they had the conversation. She was fed up because she had to put up with the fumes so long. She wanted to "get it off her chest" because she had spoken to Peter and "it had gotten her nowhere." They both agree that Ms. Brown told him she did not want to do the paint inventory anymore because of the headaches and dizziness. He said, "Fine, I'll do it myself." A few minutes later he came into the parts room and said that she did not have to speak to him in the parking lot, that she could have done it in the office. She said okay, as he walked away. He was angry, she says; his voice was louder than usual and she could hear him yelling up in the sales area. Although she could not hear what he was say­ing, she knew he was upset. Mr. Trelford denies yelling and maintains that he was upset, not because she wouldn't do the inventory, but because she was interfering with what he was trying to do in the parking lot. He compared the value of the paint inventory, in the neighbourhood of $5,000, with that of the cars he was working with - $228,000. He wondered why they could not have sat down later on in the morning and talked about it.

9. At the termination interview two weeks later, on April 14, 1989, Peter Trelford told her he did not think she was mechanically inclined enough to do the job she had been hired to do. She asked him if it had anything to do with the paint inventory and he said "not really". She took this as an indication that it had had something to do with it. This was the first time she had heard the criticism that she was not mechanically inclined and she said she disagreed. She again asked for GM parts training. Mr. Trelford said they did not have the time or the money to do that. She had previously asked the parts manager and the service manager, for training, which had not been granted, as Robert Trelford thought it was not necessary. As far as she knew everyone else who had worked in the parts department had had the training. She denies saying, "Why does this always happen to me?" as Peter Trelford testified she did. She was asked and agreed to stay on until they could find a replacement. No mention was made of the reasons recorded on the separa­tion slip which were:

Extra help was required to assist Service Manager. It was decided that above employee's skills were not compatible with this new job (based on 1 year's observation of her abilities). Our firm could not afford to hire additional person just for this job. New employee we hired is handling former employee's duties and also working as assistant to Service Manager.

Her last day of work was May 1, 1989. Her replacement now does substantially the same job as she had been doing. The general view of the Trelford's, as well as the Parts Manager and the mechanic, was that although she was a nice person she did not "have what it took" to do the job. Peter Trelford emphasized that discharge is not a common event in the Tara community.

10. Ms. Brown was hired on three months probation towards the end of which Mr. Law­rence, the Parts Manager, expressed concerns about her performance to both Messrs. Trelfords. Mr. Lawrence testified that during the early stages of employment he had problems with Ms. Brown not catching on to where parts were and how to properly refer questions. He said she made a mistake distinguishing between rush and regular parts orders. She had ongoing problems getting information and using the parts catalogues. He eventually advised Ms. Brown to refer the calls directly through to the parts counter rather than trying to gather the information herself so as not to lose customers. He also had complaints about her filing, having instructed her to refile on sev­eral occasions. He maintains that he guided her through for quite a while but she was not catching on. He said it was basically clerical errors she was making which could lead to short payment or over payment. He did not think more training would have helped. At about six months, which would be the fall of 1989, he spoke to Peter Trelford again "when [he] had had enough". Mr. Law­rence said that it was difficult to do his job when he had to constantly monitor her performance. Nothing immediately came of it as a lot of changes were being made in the business. As far as he knew, the paint inventory had nothing to do with her termination. Peter Trelford made some sug­gestions to Ms. Brown in the Fall of 1988 in regards to computer ordering work which resulted in some improvement, although he was of the view he should not have had to show her these things. When he felt Ms. Brown could not understand instructions he did the work himself.

11. Mr. Trelford Sr. testified that he knew in a general way that Mr. Lawrence didn't think Ms. Brown had what it took to do the job. He discussed the termination with his son Peter and earlier with Mr. Lawrence. He maintains that the paint inventory had nothing to do with it; it was never discussed. Peter Trelford testified that the reason the termination had not been done sooner was that his father had been ill for part of the winter. When Mr. Trelford Sr. returned in January, they had been preoccupied with hiring a salesman, and the subject of Ms. Brown's future with the firm was not dealt with. Robert Trelford was then in Florida until mid-March and Peter Trelford was away during the March school break. It was only when they were both back that Ms. Brown's future was discussed again. On direct examination Peter Trelford placed this discussion in April. On cross-examination he said late March or April. Both Trelfords say the paint room inventory was not raised in these discussions.

12. Ms. Brown acknowledges that she had difficulty with parts, particularly remembering location of parts, but says that this was due to the lack of systematic training given her. She had been asked a few days after she started if she wanted to get into parts and she had said yes, if they thought she could be helpful - with the right training, since she had no experience with GM parts. Other than the problem with parts, she maintains that she was not on notice of the employer's dis­satisfaction with her. Ken had told her to slow down on the computer and someone else would answer the phone when she was working on the computer. No one had ever told her that she was responsible for loss of customers or money. Others made errors; it was an everyday event, she says. She had also been praised by Peter Trelford, for example, on more than one occasion for being a "whiz" on computers.

13. Ms. Brown acknowledges filing truck work orders in car files during what she referred to as the training period. She says she had not been told the difference between truck and car serial numbers. She also admits filing current customer orders under miscellany and mixing up rush and regular orders. Although she realizes she had computer trouble that resulted in a four-hour com­puter shut-down, she says that others had similar problems. She says that she had trouble with phone messages if the people spoke quickly and unclearly. She thought she had not had trouble with entering options, demonstrations and vehicle transfers and was not aware others were taking over these duties. She says that the late entering of orders that she did was because the parts man­ager did not give them to her in time.

14. At the time of the last date of hearing, Ms. Brown had recently acquired a part-time job doing homecare for Red Cross, with the help of a good reference from Peter Trelford. Employer counsel introduced records from Ms. Brown's previous jobs from which he sought to impugn Ms. Brown's credibility and demonstrate that she generally did not perform at a high level. Ms. Brown did not interpret these records in the same light as employer counsel.

Argument

15. Employer counsel argued that Ms. Brown was simply not up to the job, which was con­sistent with her previous employment and scholastic record. There were discussions about termi­nating her in December, but nothing was done because of Mr. Trelford's health and a downturn in the business. He takes the position that the decision was made long before the paint inventory question arose in March. He suggests that her requests for training only corroborate the company's case that she was not performing adequately.

16. He maintains that the fact that nothing was said to Ms. Brown about the inventory after the refusal is an indication that it did not matter to the business. If it had been the crux, or impor­tant, would not the management have tried to convince her to do the inventory? Why would they wait two weeks? Trelford Senior's response is consistent with the low priority the job held in the constellation of tasks in that business. He was angry at the childish complainant for interrupting his work. Thus we are asked to infer that it is not probable that it was part of the reason for her firing but that, in counsel's words, "The dumb paint room had nothing to do with it." Further, it is sub­mitted that Peter Trelford's "Not really" is not a sufficient hook on which to hang a successful complaint.

17. Complainant's counsel emphasized that this was not a case where the complainant had only complained of health problems after the fact of the discharge. The evidence is clear that she complained to the mechanic, the Parts Manager and Peter Trelford before the firing.

18. The employer says the decision to fire was made in December but there is no culminat­ing event or major error to explain why they fired her when they did. Counsel maintains that the only trigger in evidence is the refusal to continue with the paint inventory. She received a raise in February 1989. Counsel asks if there was a problem why did she get the raise?

19. Counsel describes Mr. Trelford's response to Ms. Brown as evidence of his anti-safety animus. He heard and understood her complaint and trivialized it.

DECISION

20. The facts are not substantially in dispute although the parties characterize them very differently. It is necessary to decide whether Ms. Brown was fired because she exercised rights under the OHSA.

21. The relevant statutory provisions are as follows:

23.-

(3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine, device or thing he is to use or operate is likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works or is to work is likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such con­travention is likely to endanger himself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circum­stances of his refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of his knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is

selected by the workers to represent them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his work station.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of his refusal to work or do particular work continues to be likely to endanger himself or

another worker;

(b) the physical condition of the work place or the part thereof in which he works continues to be likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such con­travention continues to be likely to endanger himself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

(7) An inspector shall investigate the refusal to work in the presence of the employer or a per­son representing the employer, the worker, and if there is such, the person mentioned in clause (4)(a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing on the work place or part thereof is likely to endanger the worker on another person.

(9) The inspector shall give his decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4)(a), (b) or (c).

(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his work station during his normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during such hours; or

(b) subject to section 24, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device on thing or to work in the work place or the part thereof which is being investigated unless the worker to be so assigned has been advised of the refusal by another worker and the reason therefor.

(12) The time spent by a person mentioned in clause (4)(a), (b) or (c) in carrying out his duties under subsections (4) and (7), shall be deemed to be work time for which the person shall be paid by his employer at his regular or premium rate as may be proper.

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

(a) dismiss or threaten to dismiss a worker; -

(b) discipline or suspend or threaten to discipline on 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 on the regulations or an order made

thereunder on 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 tiled 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.

(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 flied 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 on discipline as to the Board seems just and reasonable in all the circumstances.

22. The Board has consistently held that these provisions mean that the employer bears the onus of showing that no part of the reason for the discharge of the employee was activity protected under the OHSA. The fact that there may be legitimate reasons co-existing with reasons prohibited by the OHSA, is not a defence to a complaint under section 24. See, among others, Commonwealth Construction Company, [1987] OLRB Rep. July 961 at paragraph 21, where it is emphasized that an employer has the right to discipline an employee for unsatisfactory conduct, provided that the discipline is not motivated, even in part, because an employee was seeking to exercise rights under the OHSA.

23. In this case, neither the complainant nor the employer were aware of the provisions of the OHSA at the time of the paint room incident or at the time of the decision to discharge. There­fore the provisions of the OHSA above with respect to the calling of an inspector, for instance, were not followed. This was not argued as a barrier to the complaint, and has been found not to be so by the Board in the past. See Bill's Country Meats Ltd., [1984] OLRB Rep. Nov. 1549, where the provision requiring the refusing employee "to report" to his or her employer was interpreted as a requirement that an employee candidly explain why she is refusing to work so that the employer can make an assessment of the situation and either rectify a dangerous condition or maintain that there is no danger. We are satisfied that Ms. Brown made it clear to her employer, in the person of both Peter and Robert Trelford, that the reason she was not continuing with the paint inventory was a concern for her health.

24. We are equally persuaded that she had reason to believe that the work was likely to endanger herself. Indeed, this was not challenged in argument by the employer. She had had sig­nificant symptoms in the past, which she had also communicated to others. On the day in question, she experienced similar symptoms once again, which continued even after she had left the paint room. The smell, which other witnesses had also noticed, was again present, and felt noxious to her. Although she did not know it at the time, the material in the room contained designated sub­stances, and the room itself could have benefited by more ventilation, in the opinion of the health and safety inspector. She knew from conversations with the mechanic who dealt with the paint on a regular basis that he frequently "had a buzz on" when he went home from work, which is consis­tent with her experience. It is also consistent with the agreed fact that inhaling the fumes in the paint room could produce varying symptoms according to the individual's susceptibility. Ms. Brown's predecessor in the job had also experienced headaches in doing the job although she had not considered them serious enough to report. We are accordingly of the view, that although she did not follow the procedure as set out in the OHSA since she was unaware of it, Ms. Brown was exercising a right under the OHSA when she refused to continue to do paint inventory on March 27, 1988.

25. The more difficult question in this case is whether Ms. Brown was discharged because she exercised her right to refuse under the Act. It is difficult because the employer gave credible evidence that it was generally dissatisfied with Ms. Brown's performance and had discussed the possibility of terminating her as early as December. Although Ms. Brown was not aware of the extent of their dissatisfaction, she was aware of certain instances of problems with her work, and felt the need for further training herself. Thus we conclude that there was legitimate ground for the employer's concern about Ms. Brown's performance. In dealing with that concern, it had many options including discharge. It chose discharge after the paint room incident. In this regard, the employer did very little to explain the troubling facts concerning the timing of the discharge. Accepting its managers' evidence, they had been seriously discontent for over eight months at the time of the termination interview. The probationary period had elapsed without any notice to Ms. Brown of this discontent other than a few suggestions as to preferred methods. Discussion in December about her future resulted in no action, not even a warning. The general subject of what employees were needed was necessarily implicated in the discussion of the hiring of a salesman in January and at this point it does not appear a decision to discharge had been made, although the evidence is somewhat conflicting on this point. Peter Trelford testified on direct examination that part of the reason for hiring the salesman was to free up his time to look at the whole situation including "Are we going to let her go?" On cross-examination, on the other hand, he said that in late 1988 they had decided she would eventually have to be let go. A raise followed in February. There was still no action of any kind against Ms. Brown. Things were similarly uneventful, with the exception of the paint room incident, up until the discharge interview on April 14, 1989.

26. We conclude from Peter Trelford's evidence that the final discussion about Ms. Brown's termination took place after the paint room incident. His answer to his own counsel was that it took place in early April. When he said late March or April to complainant's counsel, he never suggested it was before the paint room incident of March 27, 1989. Although we accept that the Trelfords did not attach much importance to the matter of the paint room incident, this in itself cuts both ways. As employer counsel argued, it might indicate that the matter was so unimportant that it could not possibly have entered into the decision to discharge. On the other hand, as com­plainant's counsel argues, it could equally indicate that they had no appreciation of the importance of taking health and safety matters seriously, and acting upon them. Mr. Trelford acknowledges that he was upset over the exchange he and Ms. Brown had in the parking lot; he clearly saw it as childish that she would be so concerned about the paint room that she would approach him while he was dealing with expensive inventory. He distinguishes the manner of the approach from the content, and maintains that the content had nothing to do with the discharge. He made no com­ment as to whether the manner of the approach had anything to do with it. It may very well be that Mr. Trelford's view of the exchange in the parking lot, which in his mind had nothing to do with health and safety, put Ms. Brown's employment back on the table to be discussed with his son.

27. The statute clearly places the onus of proof on the employer. It is for the employer to satisfy us that the decision to discharge was in no part responsive to activity protected by the OHSA. In this case we are not persuaded that the matter of the paint room had nothing to do with the discharge. At the very least, in the absence of any convincing explanation for the timing of the discharge close on the heels of the above exchange with Robert Trelford, we are convinced that it reactivated a then dormant concern about her performance. The crux of the matter is that the con­cerns the Trelfords had about Ms. Brown's performance were not sufficient to cause them to act before the paint room incident, and became so thereafter. In the absence of any cogent explana­tion for the change, in light of the reverse onus, we are not persuaded that Ms. Brown's refusal, an exercise of her rights under the OHSA, was not the triggering event. We are unable to conclude that the timing was just a coincidence. In this regard, we are not persuaded that one can com­pletely separate the manner in which Ms. Brown approached Mr. Trelford from its content. We infer from all of Mr. Trelford's evidence, that if he had agreed that Ms. Brown's concern was a serious matter, he would not have been upset at the interruption. The very purpose of the ONSA is to ensure that employee health and safety concerns are dealt with as serious matters. This pur­pose was not given effect by the employer in this case. In fact the very foundation of the argument made to the Board was that the paint inventory was such an unimportant part of Ms. Brown's job, and her refusal such a trivial incident, that it was hardly worthy of the employer's attention.

28. For all the above reasons, we find that the employer violated the OHSA in discharging Ms. Brown. She does not seek reinstatement. The Board will remain seized on the question of compensation if the parties are unable to come to an agreement on the amount.