Simon Chung v. Goldfan Holdings Limited, 1991 CanLII 6000

[1991] OLRB Rep. November 1270

1811-91-OH Simon Chung, Complainant v. Goldfan Holdings Limited, Respondent

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

APPEARANCES: Simon Chung on his own behalf; John D. Millar, James Doucette, Leo Tone and Carolyn Kerr for the respondent.

DECISION OF THE BOARD; November 26, 1991

1. This is a complaint alleging a breach of section 24(1) of the Occupational Health and Safety Act (OHSA) and of section 8 of The Smoking in the Workplace Act, S.O. 1989, in the dis­missal of Mr. Simon Chung. The complainant says that the real reason for his discharge was his activity around the issue of smoking in the workplace, while the respondent says that he was fired solely for performance problems during his probationary period.

2. The respondent ("Goldfan") is in the business of providing property management ser­vices. After being interviewed, the complainant Simon Chung was hired as a Control Centre Oper­ator for one of the buildings managed by Goldfan. The job involves a variety of duties related to the control centre, where the controls to such systems as elevators and fire alarms are found. In addition, there are duties related to reception and phone answering. He started work on June 10, 1991, subject to a six month probation period. He was given two weeks of on the job training, after which he functioned on the job alone. He was discharged on July 17, 1991.

3. The respondent's evidence was to the effect that Mr. Chung was not performing ade­quately in certain aspects of the job, that its managers realized early on that his hiring had been a mistake~ and simply corrected that mistake by releasing him during his probationary period. Caro­lyn Kerr, the Assistant Building Manager, and Chung's supervisor, had received complaints from various sources, including the Vice President, Leasing and Marketing, James Doucette. She also found him abrupt and somewhat arrogant in his relations with the public and co-workers. Kerr tes­tified that she had observed an incident from which she concluded that Chung had difficulty com­municating with the public, and was not quick enough to perceive when someone was not satisfied with his responses. She also noted that he had been spoken to twice about reading while on duty, and asserted that he had been using the company's computer for the composition of personal short stories.

4. Further, she said she had spoken to Chung three times before he went to get his uni­forms fitted and that he had been spoken to about being late for lunch. She acknowledges there were no complaints from tenants and that he did the portions of his job relating to the control pan­els satisfactorily. She was spoken to by Doucette who indicated to her he was not happy with Chung's performance at the front desk.

5. Doucette's evidence detailed his dissatisfaction with the complainant's message taking skills, and general demeanour when dealing with the public. In dealing with his portfolio of leasing and marketing, he was particularly concerned about the fact that there was a high vacancy rate in downtown Toronto generally, and in the relevant building in particular. This meant that an atti­tude of helpfulness and service to the public was particularly important in reception and phone answering, and he felt that Chung fell short in this area. He cited examples of not being able to understand what Chung was saying on the phone, reticence in giving details of messages and omis­sion of pertinent facts from messages, such as requests not to be phoned until after a certain hour.

6. Kerr spoke to Chung formally about the concerns on the morning of July 17. When she had listed the points of dissatisfaction, Chung asked her if that was all. She took this as a dismis­sive, inappropriate response. When she reported it to Bradley, he told her to fire him, which she did later that afternoon.

7. Kerr denies that smoking had anything to do with the discharge. She emphasized that she discharged Chung after being told to do so by her superior, Property Manager Bradley, a non­smoker. She agrees that Chung had asked her not to smoke when they were working together, but denies that this was a problem to her, or part of the company's decision making. She asked Chung if he wanted the control centre designated a non-smoking area as well, the rest of the common areas of the building having already been so designated. He replied that it would be sufficient if she did not smoke in his presence. She maintains that she complied with that request without difficulty because she was able to smoke in the washroom area adjacent to the control centre, where there is a telephone which she uses in her work. Other employees were also made aware they were not to smoke in the control room when Chung was there.

8. Not surprisingly, Chung's version of the conversation about smoking is somewhat dif­ferent. He says she was visibly upset and sarcastic in her tone of conversation. He asserts and she denies, that he said, "I hope you don't mind", and that she retorted, "I do mind, but there's not much I can do". He also says he explained the Toronto By-Law on smoking to her and agreed to content himself with the arrangement worked out only as a compromise because she seemed upset. Further, he says she continued to smoke in the control centre, at least to the extent of lighting up or finishing up cigarettes there. She acknowledges smoking in the unisex washroom area 15 to 20 feet from the control room, but did not think this area fell within the agreement not to smoke in the control room when Chung was present.

9. Chung says that no problems with his work were mentioned until after he raised the issue of smoking, and that the performance problems raised are either trivial or vague and unspe­cific, effectively a masquerade for the real reasons for his discharge - his pursuit of a smoke-free environment at work. He says that all the complaints are ones of interpretation and judgement, fil­tered through and coloured by Kerr's negative response to his request that she not smoke in his presence. He maintains there was no serious discussion of problems until the day of his discharge, July 17 and he could have remedied all the problems she mentioned had he been given a chance. As for his response to her complaints he said he was trying to display polite attention and he was asking if that was all in a neutral manner. He says that the allegation that he was writing a short-story was never mentioned to him during his employ, and that in fact he was working on learning a computer system available in the terminal. Kerr acknowledged he had been authorized to work on the Lotus 1, 2, 3 Computer package but she did not accept that was the activity in which he was engaged at the time.

10. The governing section in his dispute is section 24 of the Occupational Health and Safety Act, (the OHSA) which provides in relevant part 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, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(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 i02, 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.

11. Also pleaded in this matter is section 8 of The Smoking in the Workplace Act, S.O. 1989, which reads as follows:

8.-(1) No employer or person acting on behalf of an employer,

(a) shall dismiss or threaten to dismiss an employee;

(b) shall discipline or suspend an employee or threaten to do so;

(c) shall impose a penalty upon an employee; or

(d) shall intimidate or coerce an employee,

because the employee has acted in accordance with or has sought the enforcement of this Act.

(2) Subsections 24(2) to (8) of the Occupational Health and Safety Act apply with necessary modifications when an employee complains that subsection (1) has been contravened.

This legislation came into effect January 1, 1990 and prohibits smoking in enclosed workplaces, except in employer designated smoking areas. In the building in question, the control centre and washroom area had been considered smoking areas at the time of Chung's hiring, while the lobby, corridors and other common areas were non-smoking areas.

12. Chung's complaint suggests that he was seeking enforcement of the City of Toronto's By-Law 23-88 respecting smoking in the workplace as well. Potentially relevant sections of that By­Law are as follows:

13. (1) Every employer in the City of Toronto shall, before March 1, 1988, adopt and implement a smoking policy in respect of each workplace under the control, supervision or ownership of the employer;

(2) Where after March i, 1988, a workplace is created or comes into existence, the employer of such workplace shall within 7 days after such workplace is created or comes into existence, adopt and implement a smoking policy in respect of each such workplace under the control, supervision or ownership of the employer.

3. Every employer required by the By-Law to adopt and implement a smoking policy shall

(a) thereafter maintain that smoking policy in the workplace for which it was adopted;

(b) give notice of the adoption of the smoking policy to each employee in the work­place within 7 days after the day upon which the smoking policy in respect to that workplace was adopted;

(c) erect signs in accordance with section 10 of this By-law indicating where smoking is prohibited by the smoking policy; and

(d) erect signs in accordance with section 10 of this By-law at every entrance to the workplace indicating that smoking is prohibited in certain areas thereof by the smok­ing policy.

4. If a smoking policy has been adopted as required by section 2 of this By-law a non-smoking employee may object to the employer about smoke in the workplace and where a non-smoking employee so objects, the employer shall attempt to reach a reasonable accommodation between the preferences of non-smoking and smoking employees using already available means of venti­lation, separations or partitions, but no employer shall be required to make any expenditures or structural alterations to the workplace to accommodate the preferences of non-smoking employ­ees.

5. If an accommodation referred to in section 4 satisfactory to all non-smoking employees in the workplace cannot be reached, the employer shall prohibit smoking in that workplace and shall erect signs in accordance with section 10 of this By-law throughout the workplace and at every entrance to the workplace indicating the prohibition.

6. No person shall smoke in a workplace contrary to the smoking policy adopted for that work­place.

7. No person shall smoke in a workplace where an employer has prohibited smoking in that workplace as required by section 5 of this By-law.

8. No employer shall permit smoking in a workplace contrary to the smoking policy adopted for that workplace.

9. No employer shall permit smoking in a workplace where the employer is required under sec­tion 5 of this By-law to prohibit smoking.

Additionally ,it is pleaded he was seeking enforcement of section 14(2)(g) of the OHSA, which provides as follows:

14.-(2) Without limiting the strict duty imposed by subsection (1), an employer shall

(g) take every precaution reasonable in the circumstances for the protection of a worker;

13. The employer did not argue that Chung's actions in requesting Ms. Kerr not to smoke were not within the ambit of the relevant legislation. Thus, we have assumed, without deciding, that Chung was either acting in compliance with, or seeking the enforcement of one or both of OHSA or The Smoking in the Workplace Act. Nor is it necessary to decide whether an attempt to enforce the By-law is equivalent to an attempt to enforce one of the other pieces of legislation, a point on which neither party made argument.

14. We have considered all the evidence and submissions in light of the onus of proof and are of the view that the complaint must be dismissed. Even accepting Chung's account of Kerr's reaction to his request not to smoke in his presence, we are persuaded that the reasons given for Chung's release from probationary employment were the real ones and they were not tainted by anti-safety animus or in response to Chung's activities around smoking. The discharge was prompted principally by the complaints from Doucette, who came and explained why he was dis­satisfied in a credible way. There was no suggestion or evidence that he even knew about the exchange between Chung and Kerr about smoking or that his judgement was somehow affected by hers. It is clear that in the hierarchy of this company, his opinion had great weight with Kerr.

15. As to Kerr's grounds for dissatisfaction, Chung agrees that many of the incidents took place, such as reading on duty and slowness to get his uniform. He did not dispute he was late returning from lunch. He feels that the reading on duty issue and the uniform problem were results of misunderstandings which Kerr cleared up on July 17. He denies he was writing a personal short story on company time and it is clear that this was not one of the grounds of dissatisfaction dis­cussed with him on July 17. Although it is true that many of these things did not surface until after the smoking exchange, it must be kept in mind that the exchange took place on the second day Chung and Kerr were working directly together; her main opportunity to observe him had just started. Even though they had not been working as closely together previously, as Chung was being trained by someone else, Kerr had spoken to him twice about reading on duty before the smoking conversation. (Since the employer is not relying on it, it is unnecessary to deal with the occasion when Chung smoked what he says was a herbal cigarette at work.)

16. If Chung had been a long-service employee, his argument that these reasons were not serious enough to be credible reasons for his release would have more force. Given the fact that he was still on probation, the reasons given by the employer were plausible. Their witnesses were credible, even if their memories on some details was not as sharp as Chung's, since he had been keeping notes of his conversations. The discharge did not come on the heels of the smoking exchange with Ms. Kerr, and was not initiated by her, although the concerns raised by Doucette were consistent with her own observations.

17. In the alternative the complainant asked us to apply section 24(7) and reduce the pen­alty to a suspension. In the circumstances of this case, we see no reason to interfere with the pen­alty imposed. The release of a probationary employee of five and one-half weeks experience where there is no contractual constraint is not something that in our view warrants the exercise of the sec­tion 24(7) discretion, and we were referred to no authority or reasoning to suggest otherwise.

18. For the reasons given above, the complaint is dismissed.