Ontario Labour Relations Board
[1990] OLRB Rep. August 874
0107-90-OH Manuel Puche, Complainant v. Ho Ramjit, Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members M. Rozenberg and K. Davies.
APPEARANCES: Manuel Puche for the complainant; Bo S. Ramf it and David Sly for the respondent.
DECISION OF THE BOARD; August 29, 1990
1This is a complaint alleging that the respondent Bo Ramjit violated section 24 of the Occupational Health and Safety Act ("OHSA" or "the Act") by discharging the complainant because the complainant sought the enforcement of the Act or the regulations to the Act.
2The Board notes that the complainant and the respondent appeared without legal counsel. The respondent acted on his own behalf although he did have an advisor present on the first day of the hearing. The Board commented that there was no requirement that persons appearing before the Board have legal counsel. The Board not infrequently conducts hearings where one or more parties are unrepresented. The Board noted however that Board hearings are legal proceedings and persons appearing on their own behalf do bear any risk involved with appearing on their own behalf. We indicated that the Board's function is to adjudicate. It would be inconsistent with our role as adjudicators to become an advocate for, or advisor to, any party to the proceeding because that party is unrepresented by counsel. In this instance however, the Board did explain the process to be followed to the complainant and the respondent both initially and throughout the proceeding. We also indicated, at various stages of the proceedings, that the issue before the Board was whether the respondent had discharged Mr. Puche because of Mr. Puche's attempt to exercise rights under the Occupational Health and Safety Act.
The Adjournment Request
3During the course of the hearing the respondent requested an adjournment of certain scheduled hearing dates. This request was opposed by the complainant. After hearing the submissions of both parties the Board dismissed the respondent's request for an adjournment and indicated that our reasons for so doing would be stated in the written decision in respect of the merits of the complaint. We now provide our reasons.
4This matter first came on for hearing on May 22, 1990. The matter was not concluded on that day, and by letter dated June 6, 1990, the Registrar advised the parties that the hearing would be continued on July 30 and 31, 1990. By letter dated June 11, 1990, the respondent requested an adjournment of those dates because his "advisor", Mr. David Sly, was not available on those dates.
5The usual practice of the Board is to grant an adjournment only on the consent of all the parties to the proceeding or where the request is based on circumstances beyond the control of the party making the request and where to proceed would seriously prejudice such party. (See for example Catalyst Technology (Canada) Ltd., [1987] OLRB Rep. June 803 at page 805 and the cases referred to therein.)
6The Board has the discretion to adjourn any hearing if it considers it advisable or in the interest of justice to do so. (See section 82(1) of the Board's Rules of Procedure, and section 21 of the Statutory Power of Procedure Act, R.S.O. (1980) Chapter 484 as amended.) In the exercise of that discretion the Board is guided by a number of principles including the importance of expedition in labour relations and employment matters.
7In Re Flamboro Downs Holdings Ltd. & Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400 at pages 404 and 405 the Ontario Divisional Court stated:
Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it. the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.
This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of a natural justice. There are circumstances in which that might be so: see, for example R. v. Ontario Labour Relations Board, Exp. Nick Masney Hotels Ltd. 1197013 OR. 461, 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289 (CA.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271. 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutory Powers Procedure Act 1971 (Ont.) c.47, and afford the parties the opportunity to be present and be represented if they wish by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his conscience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.
It cannot be suggested that the Board may not in the exercise of is [sic] discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Author-it)', Ex. p. Kynock, Ltd.. [1919] 1 KB. 176. That policy is obviously necessary to the proper administration of the Board's process...
[emphasis added]
8As noted, Manuel Puche opposed the adjournment request. In his submissions he indicated that he wished to have his case dealt with expeditiously, that he had subpoenaed witnesses to attend on the scheduled hearing dates, that those witnesses might not be available on other dates if the hearing was adjourned and rescheduled, and that he had to travel out of the country for personal reasons in the near future and would thus be prejudiced by an adjournment and rescheduling of the hearing.
9For his part, Mr. Ramjit advanced only the unavailability of his "advisor" Mr. Sly as a reason to grant the adjournment. We note that Mr. Sly is not a lawyer. Although present on the first day of hearing Mr. Sly did not actively participate in the hearing. He did not examine or cross-examine any witnesses or address any submissions to the Board. That was all done by Mr. Ramjit himself. Mr. Ramjit may have consulted with Mr. Sly during the course of the hearing and may have gained advice from such consultation but it was Mr. Ramjit and not Mr. Sly who had carriage of the case.
10In this case Mr. Ramjit was aware of Mr. Sly's unavailability at least six weeks prior to the scheduled hearing date as evidenced by his written request for an adjournment dated June 11, 1990. The Registrar advised Mr. Ramjit by letter dated June 20, 1990 that:
I would advise that a party seeking an adjournment of the scheduled hearing must obtain the consent of all parties to the proceeding. otherwise such request must be made before the panel hearing the case.
In our view Mr. Ramjit had ample opportunity to retain and instruct another "advisor" or lawyer in this matter. In these circumstances, we were of the view that the complainant's right to an expeditious hearing would be seriously prejudiced if the Board granted the adjournment. Weighed against such prejudice was the inconvenience which the respondent would or could suffer because his "advisor" was not present in the hearing room. That inconvenience could easily have been avoided had Mr. Ramjit retained another ~advisor" when he was notified that his request for an adjournment would not automatically be granted as of right. For these reasons the request for an adjournment was dismissed.
The Complaint
11We now turn to examine the facts in this case. Before so doing we find it appropriate to briefly review the applicable law within which we propose to assess the evidence before us.
- Section 24 of the O.H.S.A. reads as follows:
24.-(I) 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 ct)mplains that an employer or person acting on behalf of an employer has contravened subsection (I), 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.
(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 (I).
(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.
12As was noted by the Board in Commonwealth Construction Company, [1987] 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.
[emphasis added]
13As 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 so encourage workers to raise health and safety concerns with their employer and others and to thereby reduce the likelihood of injury in the workplace.
14In assessing whether an employee's discharge was a violation of the OHSA, we must look to all the circumstances surrounding the discharge to determine whether the discharge was motivated in whole or in part by the complainant's safety related activities or his exercise of rights conferred upon him by the OHSA.
15In 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. 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 OHSA.
16The 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.
17The same 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 we cannot be "unduly swayed by either the coexistence of fair treatment or by the coexistence of legitimate reasons for the employer's conduct". If the employer has satisfied us that no part of the reason for the discharge was because Mr. Puche acted in compliance with the Act or 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.
18We heard the evidence of four witnesses including the complainant and the respondent. We find the relevant facts to be as follows.
19Mr. Bo Ramjit is the sole owner of Vogue Interiors. Vogue Interiors is in the business of custom wood working manufacturing. In addition to Mr. Ramjit, Vogue Interiors employs anywhere from three to five employees.
20Mr. Manuel Puche was hired as a machine operator and commenced work with Vogue Interiors on October 30, 1989. Shortly after he commenced working at Vogue Interiors, Mr. Puche raised a number of health and safety concerns with Mr. Ramjit. We find that until his termination on April 3, 1990, while Mr. Puche was employed at Vogue Interiors, he spoke to Mr. Ramjit on several occasions about various health and safety matters ranging from inadequate ventilation and the presence of exposed live wires on the plant floor to the lack of heat in the premises, lack of lighting in the washroom facilities, lack of hot water on the premises, and the unavailability of a first aid kit. Mr. Ramjit took no steps to correct any of the safety concerns which were brought to his attention.
21We also find that Mr. Puche exhibited poor time keeping habits while employed at Vogue Interiors. He would often come in late, leave early or take extended breaks. On some occasions he would ask permission to come in late or leave early but those occasions appear to be infrequent and relate to times when Mr. Puche required time off to look for another job. For the many times that Mr. Puche was late, left early or over extended his break for periods of time ranging anywhere from a few minutes to over an hour, permission to be absent from his work station was not obtained. Mr. Puche attributed these periods of absence to a number of factors including the fact that on occasion he would have to wait to start work until someone opened the plant doors or, the fact that for a period of time employees found it necessary to use the washroom facilities of a nearby restaurant because the washroom facilities at the plant were either not operational or in total darkness because Mr. Ramjit had removed the light bulb.
22Notwithstanding that there were some legitimate reasons for not attending at work in a timely fashion we find that on a number of occasions Mr. Puche was simply late without any apparent reason or explanation. The evidence makes it clear that in this regard, from Mr. Ramjit's point of view Mr. Puche was not a satisfactory employee. Nevertheless Mr. Ramjit did not discipline Mr. Puche. Although we accept that Mr. Ramjit's spoke to Mr. Puche about the need for punctuality and urged him to improve his time keeping habits because others depended on him to operate the machines and supply work to the other employees, we find these discussions were of a counselling nature and were not considered by either party to be disciplinary. Mr. Ramjit never imposed any discipline and never warned Mr. Puche of any negative employment consequences if his time keeping did not improve.
23As Mr. Ramjit had failed to address any of the safety concerns voiced by the employees at Vogue Interiors, Mr. Puche contacted the Ministry of Labour, Occupational Health and Safety Division ("MOL."). On the afternoon of April 2, 1990, an inspector attended at the premises. While there he spoke first with Mr. Puche. Mr. Puche showed the inspector around the premises and pointed out his various concerns. Thereafter, the inspector spoke to Mr. Ramjit. Upon completion of his inspection and prior to leaving the premises the inspector made a number of orders to comply with the OHSA including an order that certain equipment not be used until the order was complied with.
24Mr. Ramjit was aware that the inspector had spoken to Mr. Puche. Mr. Ramjit testified that he was not aware that Mr. Puche had complained to the M.O.L. until after Mr. Puche's employment had been terminated. He stated that he only became aware of that fact because Mr. Puche himself advised Mr. Ramjit that it was he who had called the M.O.L. Mr. Ramjit testified that, because he is a member of a visible minority, and often works alongside his employees, visitors to the premises rarely consider that he is the owner of the company. He stated that typically visitors approach a white employee first and are then directed to him. It was his evidence that he assumed this had happened on this occasion and that that is why the inspector spoke to Mr. Puche first.
25On April 2nd, Mr. Puche left work early because of his search for alternate employment. He had obtained permission to do so from Mr. Ramjit.
26On April 3, 1990, Mr. Puche was late in attending at work. Upon commencing work however, he found a note directing him to speak with Mr. Ramjit before he started any work. When Mr. Puche went to speak with Mr. Ramjit he was advised that his employment with the company was terminated. Mr. Puche testified that he was given no reason for his termination. Mr. Ramjit testified that he advised Mr. Puche that the reason he was fired was because of his irregular time keeping. That is also the sole reason which Mr. Ramjit advances for the termination before this Board.
27The issue we must decide is why Mr. Puche was discharged. This turns on our findings of the facts, based on our assessment of the evidence and, most importantly the credibility of the witnesses.
28The complainant and the respondent each testified on their own behalf. As is typical of contested complaints made pursuant to section 24 of the OHSA, the evidence of each stood in direct contradiction to the evidence of the other. In assessing the credibility of these two key players, we find that each offered his evidence in a self serving manner prompted primarily by self interest. That self interest tended to colour not only their actual recollection of the events about which they testified, but also their ability to recall events about which the other testified. Thus, for example Mr. Ramjit had no recollection of Mr. Puche ever having spoken to him about any of the health and safety concerns itemized in the complaint. For his part Mr. Puche testified he always asked permission to be absent from work or notified the company prior to his absence. The demeanour of each of these two witnesses was most unsatisfactory.
29On balance, having regard to the usual criteria and the reasonable inferences that can be drawn from the totality of the evidence we conclude that the respondent has not met the burden of proof placed upon him by section 24(5) of the OHSA. He has not established on a balance of probabilities that the did not act contrary to section 24(1) in dismissing the complainant. We do not believe that the sole or only reason why Mr. Puche was dismissed was as stated by Mr. Ramjit. Undoubtedly, Mr. Puche had some deficiencies as an employee during his brief period of service with Vogue Interiors. These deficiencies however do not disentitle him from the protection of the OHSA. The respondent has not however convinced us that no part of the reason for the discharge was because Mr. Puche chose to exercise his rights under the OHSA. In so finding we are particularly concerned with the timing of the discharge, and the lack of any previous disciplinary response to Mr. Puche's time keeping deficiencies.
30Mr. Puche was suddenly terminated for tardiness when he had received no previous warning that his employment was in jeopardy. That this occurred the day after a safety inspector attended at the premises and issued a number of orders under the OHSA after speaking with Mr. Puche and being shown around by Mr. Puche is, in our view, more than mere coincidence. These two factors in particular point to the fact that at least one of the reasons why Mr. Puche was terminated was because he sought the enforcement of the ORSA. Accordingly, we find that the respondent's actions constitute a violation of section 24(1) of the OHSA and were a reprisal of Mr. Puche's exercise of his rights under that Act.
31We now turn to the issue of remedy. Mr. Puche did not seek reinstatement but asked for only an award of monetary damages. We note the evidence of both Mr. Puche and Mr. Ramjit that at the time of his termination Mr. Puche was already looking for alternate work. Mr. Puche was not happy at Vogue Interiors and intended to leave in any event. We also note that Mr. Ramjit was obviously not happy with Mr. Puche's performance. In our view, had these other matters not intervened Mr. Ramjit would ultimately have discharged Mr. Puche because of his time keeping problems as it was obvious from his testimony that he was losing his patience.
32As was noted in Art Shoppe, [1988] OLRB Rep. August 729 the remedy for a violation of section 24(1) is not intended to be a windfall to employees, but rather compensation for losses suffered as a result of the respondent's violation of section 24. Having regard to all of the circumstances including Mr. Puche's brief length of employment with Vogue, his wage rate while employed at Vogue Interiors, the length of his unemployment after termination, his attempts at mitigation and the factors referred to in paragraph 31 herein we have determined that an appropriate compensatory award of damages is the amount of four thousand five hundred dollars ($4,500.00).
33This amount is to be paid to Mr. Puche by Mr. Ramjit together with interest calculated in accordance with the Board's Practice Note No. 13 within 14 days of receipt of this decision.