[1990] OLRB Rep. September 987
1143-90-OH Tim V. Pauley, Complainant v. Village Pool & Spa, Respondent
BEFORE: Robert Herman, Vice-Chair, and Board Members W. A. Correll and K. Davies.
APPEARANCES: Tim Pauley on his own behalf; no one appeared for the respondent.
DECISION OF THE BOARD; September 21, 1990
This is a complaint that the respondent employer has breached section 24(1) of the Occupational Health & Safety Act.
Although duly served with the relevant materials and the Notice of Hearing, the employer neither filed a Reply nor appeared at the hearing at the scheduled time and place. The Board waited approximately thirty-five minutes before commencing the hearing, in order to afford a further opportunity for the respondent or someone on its behalf to appear. No one however appeared at any time on behalf of the respondent employer.
The complainant, Mr. Pauley, performed installations and service work for the respondent employer. Around June 28, 1990, Mr. Pauley was directed to work on a job involving sand-blasting of a concrete pool. This was the first time that he had been required to perform such a job. His particular function was to operate the air, turning it off and on, and sweeping the sand back.
His foreman, Gary Verkaik, had instructed Mr. Pauley to work the air, but to stay well back from the sand spray, as he did not have a proper safety mask. For the first half hour or so, Mr. Pauley was able to stay well back from the sand, and by turning the air off before he swept the sand back, was able to avoid any problem with the swirling sand. However, at that point Gary Boone, his boss, came around and brought Mr. Pauley a small paper mask, to cover his nose and mouth. He did not bring Mr. Pauley any safety glasses. Mr. Boone instructed Mr. Pauley to move right up beside the sandblasting, as in that way the sand blaster could be operated continuously, and the job would take less time to complete. The co-worker who was actually doing the sandblasting, Irwin Long, was wearing a proper safety hood with a plexiglass eye panel.
Pursuant to Mr. Boone's instructions, Mr. Pauley tried for a time to stand near the sandblasting while the blasting was going on, wearing only the small paper mask, but he found that the swirling sand was getting in his face, and particularly his eyes. Mr. Pauley then advised Mr. Boone that he wanted a proper safety mask, that it was not safe to perform the job wearing only the small paper mask, and that he did not want to work that close to the swirling sand. Mr. Boone responded that if Mr. Pauley would not do the work, that was fine and Mr. Boone would then find someone else to do it and he advised Mr. Pauley to get out. In effect, Mr. Boone discharged Mr. Pauley. He gave Mr. Pauley a ride back to the office, where Mr. Pauley retrieved his truck and went home.
This was the last time that the complainant Mr. Pauley spoke to Mr. Boone. Mr. Pauley never heard from the company or Mr. Boone again. The complainant's final pay cheque was picked up by his father.
The Board also heard evidence concerning the amount of money lost by Mr. Pauley because of his discharge by Mr. Boone, and his inability to obtain alternative employment paying comparable wages. The complainant was not seeking reinstatement, but only compensation for the lost wages because of the allegedly improper discharge.
Section 24(1) of the Occupational Health and Safety Act 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.
- Having regard to the evidence, the Board is satisfied that the respondent employer breached section 24(1) of the Act in its discharge of the complainant, Mr. Pauley. Mr. Pauley was discharged because he was concerned for his safety and refused to work in an unsafe manner. He was acting in compliance with the Act in so refusing. His discharge therefore breached section
24(1).
- With respect to the appropriate remedy, the Board is satisfied that Mr. Pauley suffered
a direct loss because of this discharge in the amount of $2,100.00. We hereby order that the respondent employer pay forthwith to the complainant the amount of $2,100.00 as compensation.