Sandra Nicholls v. Air Products Canada Ltd., 1991 CanLII 6012

[1991] OLRB Rep. January 1109

2904-90-OH Sandra Nicholls, Complainant v. Air Products Canada Ltd., Respondent

BEFORE: Janice Johnston, Vice-Chair, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Linda Vannucci-Santini for the complainant; Michael Failes and Michael Gass for the respondent.

DECISION OF JANICE JOHNSTON, VICE-CHAIR, AND BOARD MEMBER W. H. WIGHTMAN: October 4, 1991

1. This is a complaint filed under section 24(2) of the Occupational Health and Safety Act (the "OHSA") in which the complainant, Sandra Nicholls, alleges that she has been dealt with by the respondent, Air Products Canada Ltd. ("Air products" or the "employer"), contrary to sec­tion 24(1) of the OHSA.

2. Ms. Nicholls took the position that she was dealt with by the respondent contrary to the provisions of sections 8, 2 and 5 of the Smoking in the Workplace Act (the "SWA") and because she acted in compliance with, or sought the enforcement of the SWA and the OHSA. Ms. Nicholls took the position that she was constructively dismissed by the respondent. Air Products took the position that Ms. Nicholls resigned from her employment.

3. The relevant provisions of the Occupational Health and Safety Act 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, 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 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.

4. The relevant provisions of the Smoking in the Workplace Act provide:

2.-(1) No person shall smoke in an enclosed workplace.

(2) Subsection (1) does not apply so as to prohibit smoking,

(a) in a smoking area designated by an employer under subsection 3(1);

(b) in an area used primarily by the public;

(c) in an area used primarily for lodging; or

(d) in a private dwelling.

3.-(1) An employer may designate one or more locations in an enclosed workplace as smoking areas.

(2) The total space for designated smoking areas at an enclosed workplace shall not exceed 25 per cent of the total floor area of the enclosed workplace, exclusive of the places described in clauses 2(2)(b), (c) and (d).

(3) An employer shall consult with the joint health and safety committee or the health and safety representative, if any, at the workplace before establishing a designated smoking area.

(4) In subsection (3),

"health and safety representative" means a health and safety representative selected under the Occupational Health and Safety Act;

“joint health and safety committee" means a joint health and safety committee estab­lished under section 8 of the Occupational Health and Safety Act or a similar commit­tee or arrangement, program or system in which employees participate.

5.-(1) An employer shall make every reasonable effort to ensure that no person contravenes subsection 2(2).

(2) An employer shall make every reasonable effort to accommodate employees who request that they work in a place separate from a designated smoking area.

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 emplo9ee; 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.

5. At the commencement of the proceedings the respondent raised an objection as to the timeliness of the complaint. The subject matter of the complaint occurred in November, 1990 and the complaint was not filed until February 7,1991. It was counsel for the respondent's position that this delay of approximately two months was unreasonable and that the Board should therefore dis­miss this complaint. It was agreed that the Board would hear the evidence on the issue of delay and on the merits together and rule on both issues at the end of the case.

6. Ms. Nicholls was hired by Air Products on March 26, 1990 as an Accounts Receivable Clerk. She worked for the company until November 30, 1990.

7. The Board heard evidence from five witnesses. The respondent called three witnesses, Ms. Jill Martin, Ms. Tarja Loewen and Mr. Michael Gass. The complainant testified on her own behalf and Ms. Glenna Walkden was also called by counsel for the complainant to give evidence. In assessing the credibility of the various witnesses, the Board took into account the usual factors including: their ability to avoid the inclination to colour or tenor their evidence in accordance with their self interest; their general demeanour; their ability to recall the events; the clarity and consis­tency of their evidence when compared with that of other witnesses and subjected to the test of cross-examination; and most importantly, what was reasonably probable in all the circumstances.

8. The complainant testified that issues with regard to smoking in the workplace were very important to her, and that in her employment interviews it was her prime concern. The Board heard a great deal of evidence as to what was, or was not said at the complainant's employment interviews. After reviewing all of the evidence it is clear that the issue of smoking in the workplace was raised by the complainant and that the employer responded by explaining the company's pol­icy. The policies and practices in existence at the company's premises with regard to smoking were accepted by the complainant. The complainant was hired, and worked without objection to the smoking in the workplace until July, 1990.

9. In July 1990, the complainant brought to the attention of management concerns with regard to the heating, ventilation and air conditioning system. In her opinion, the system was not functioning properly resulting in a build up of second hand smoke in her work area. These con­cerns were looked into, changes and repairs were made and there were no further complaints. It is important to note that the complainant at this time did not object to the company's policies and

procedures concerning smoking but was merely bringing to the attention of management a defect in the ventilation system.

10. There was no dispute that during the course of the complainant's employment at Air Products a smoking policy was in effect. The smoking policy was as follows:

To: ALL BRAMPTON EMPLOYEES Dept:

From: ROBIN A. SCOTT Dept/Ext.:

Date: 29 NOV 1989

Subject: SMOKING IN THE WORKPLACE

Effective January 1, 1990, our workplace, along with some 233,000 others throughout Ontario, will be required by the "Smoking In The Workplace Act" to restrict on-the-job smoking.

The purpose of this Act is to restrict workplace smoking by establishing minimum standards that limit exposure to tobacco smoke in the workplace.

To comply with this legislation, the following policies will be in effect on January 1, 1990.

• Smoking will be banned in all areas of the workplace except those areas specifically designated as ~'smoking areas".

• An employee who smokes may request their office/workstation be designated a smok­ing area. Such requests are to be made to Jim Tuff or Brian Greenshields. No such request will be denied unless Company or other legislative requirements prevent the area from being so designated.

• All areas designated as smoking areas must clearly be identified with a sign. Desk-top signs will be provided to employees who have chosen to designate their office/workstation a smoking area.

In an attempt to accommodate all employees, every reasonable effort will be made by the Com­pany to ensure a non-smoking employee is not adversely affected by a designated smoking area in close proximity to the non-smoker.

Remember, this policy comes into effect on January 1, 1990.

"Robin A. Scott"

Robin A. Scott

The complainant in her evidence did not take the position that Air Products was in violation of sec­tion three of the Smoking in the Workplace Act. There was no evidence before us to indicate that at any time the designated smoking areas exceeded twenty-five per cent of the total floor area.

11. Ms. Tarja Loewen was the complainant's supervisor. Ms. Loewen testified that on Fri­day, November 16, 1990 the complainant "came into my office and said that because of the smok­ing policy in the office she had to consider her own health and resign". Ms. Loewen also testified that Ms. Nicholls asked if she could be moved to another location in the office where the smoke would not bother her as much. Ms. Loewen indicated that she would speak to Mr. Michael Gass, the Personnel Manager, to see if there were any changes coming in the smoking policy or if there was another location they could move her to. Ms. Loewen spoke to Mr. Gass the same day. They concluded that as the complainant needed a smoke free work area there was no other location they could move her to. Mr. Gass testified that they reached this conclusion in part because an air qual­ity survey, which had recently been conducted, indicated that the air quality was the same through-out the building. The smokers were spread out throughout the building as the employees were grouped in functional areas (i.e. accounting, personnel etc.). Mr. Gass did however indicate that he would speak to the general manager about the smoking policy.

12. Ms. Loewen testified that Mr. Gass got back to her later that same day and indicated that there would be no immediate changes to the smoking policy but that a committee would be formed to look at the issue. Ms. Loewen indicated that she got back to the complainant that after­noon and told her the results of her conversation with Mr. Gass. Ms. Loewen testified that she and the complainant then agreed that they would make the complainants notice "effective till she found another job or I found someone to replace her whichever occurred first". The date of her notice was to be November 16, 1990 but her last day worked was to be flexible.

13. Ms. Loewen next talked to the complainant on Wednesday, November 21, 1990. On that day the complainant delivered her letter of resignation. It read as follows:

Dear Tarja

As we discussed in your office Friday, Nov. 16/90, I feel compelled to resign my position with Air Products because of the smoke in the office.

The suggestions I put forth for re-locating my work area did not meet with your approval & since there is no smoke-free area, I must consider my own health.

As a result of the considerations, I have decided to terminate my employment Friday, Novem­ber30, 1990.

I deeply regret the necessity of this decision & trust you understand my position.

Yours truly

"Sandra Nicholls"

Ms. Loewen testified that during this discussion the complainant indicated that the agreement reached on Friday providing the complainant with flexibility concerning when her last day of work was no longer acceptable and that her last day would be November 30. The complainant at this time also put forward three suggestions as to where she could be moved. These were unacceptable to Ms. Loewen who felt that to move the complainant would not solve the problem, as there were no smoke free areas. The meeting ended when the complainant tendered her resignation in writ­ing. Ms. Loewen testified that at no time did Ms. Nicholls attempt to rescind her resignation.

14. Mr. Michael Gass testified that on Tuesday, November 20, Ms. Nicholls telephoned him and requested to meet with him. He agreed and they met later that day. Mr. Gass testified that she began the conversation by stating "I guess you're aware that I've resigned my employment with Air Products due to the smoking". She went on to discuss her concerns with regard to the smoking issue. They discussed the Smoking in the Workplace Act, the smoking policy and the new committee which was being put together to address the smoking issue. Mr. Gass testified that he showed her the memo which was about to be issued announcing the committee, and commented that she would be free to join it. Her response, according to Mr. Gass, was that she did not think the committee would do any good and she had no interest in sitting on it. They discussed a few other matters and she left his office. Mr. Gass testified that at no time did Ms. Nicholls attempt to rescind her resignation. He testified that he had no indication from her prior to receiving this com­plaint currently before the Board that she did not intend to, or want to quit.

15. The evidence given by Ms. Nicholls confirms that she met with Ms. Loewen On Novem­ber 16, 1990. Ms. Nicholls testified that she talked to Ms. Loewen about the "possibility" of leaving the employ of the respondent because she was having problems with the smoke in the work­place. Her evidence is consistent with that given by Ms. Loewen however, that they went on to strike a deal that she would stay until she found another position or Ms. Loewen located someone to fill her position. In addition, Ms. Nicholls confirmed that they discussed the possibility of chang­ing her location but it was her position that Ms. Loewen refused to consider her suggestions. From this point on, the version of events as told by Ms. Nicholls is significantly different from the version related to the Board by Mr. Gass and Ms. Loewen. Ms. Nicholls testified that Ms. Loewen did not tell her she would speak to Mr. Gass nor did she report back to her after this alleged meeting.

16. Ms. Nicholls testified that when she found out about the smoking committee from another employee on Friday, November 16, 1990, she decided to meet with Mr. Gass. She testified that she spoke to him on Friday, November 16, 1990. She testified that Mr. Gass talked to her about the committee but that he did not "exactly" invite her to be on it. She testified that they dis­cussed her concerns and that she made several suggestions to him concerning structural changes which could be made to the building to reduce the smoking in the workplace. Ms. Nicholls testified that she told Mr. Gass she would like to rescind her verbal resignation and he replied that she would have to discuss it with her supervisor Ms. Loewen.

17. Ms. Nicholls testified that she then approached Ms. Loewen and told her about her dis­cussion with Mr. Gass. She testified that she told Ms. Loewen that she was excited about the changes being made and would like to rescind her resignation. The complainant testified that Ms. Loewen told her "that it was too late to decide to stay because the wheels had been put in motion to replace me". According to Ms. Nicholls this meeting also took place on Friday, November 16. Therefore Ms. Nicholls testified that she met twice with Ms. Loewen and once with Mr. Gass on the same day, November 16, 1990.

18. Ms. Nicholls testified that she next met with Ms. Loewen on November 21, 1990 and handed in her written resignation. She testified that she felt she should leave as she could not see anything else to do. In cross-examination Ms. Nicholls admitted that she had acquired copy of the SWA in April or May. She testified that she made a few calls (she could not remember to whom) and eventually decided not to do anything as she had been told the company was complying with the legislation. When questioned in cross-examination as to why she did not refer to her attempts to rescind her resignation, in her letter of resignation, Ms. Nicholls was initially quite evasive but ultimately stated that she "guessed" she was "not thinking". She could not put forward any rea­sonable explanation for this rather significant omission.

19. The result in this case depends to a very large extent on whether the Board accepts as true the evidence of Ms. Nicholls or the evidence of Ms. Loewen and Mr. Gass. Ms. Nicholls acknowledged in her evidence that she quit but insists that she tried to rescind this in conversations with Mr. Gass and Ms. Loewen. Mr. Gass and Ms. Loewen both deny that Ms. Nicholls ever attempted to take back her resignation and thereby continue her employment. In applying the tests to determine credibility as set out earlier in our decision, we prefer the evidence of Mr. Gass and Ms. Loewen to that of Ms. Nicholls.

20. The Board accepts the evidence of Ms. Loewen and Mr. Gass as to when they met with the complainant, and what was discussed at those meetings. We conclude that Ms. Nicholls ver­bally resigned on November 16, 1990 and confirmed this in writing on November 21, 1990. We determine that even if Ms. Nicholls believes at this point that she attempted to rescind her resigna­tion, she did not in fact try to do so in November, 1990. The evidence of Mr. Gass was quite clear on this matter and he was not moved from it in cross-examination. Ms. Loewen was not cross-examined by counsel for the complainant on this extremely crucial point. Her evidence that Ms. Nic­holls did not attempt to rescind her resignation was not challenged in cross examination.

21. We conclude that the complainant resigned her employment with the respondent and did not attempt to rescind this resignation. There is no question of a reprisal as the respondent did not refuse to allow her to withdraw her resignation. She never asked to do so.

22. Counsel for the respondent referred us to jurisprudence which recognizes that the act of quitting consists of both a subjective intention to leave one's employer, as well as some objective conduct consistent with that intention (see Re Government of B. C. & B. C Government Employees Union 1977 CanLII 2885 (BC LA), 17 LAC (2d) 42 and Re Board of Education for the Borough of New York and CUPE Local 922 26 [AC (2d) 182). In the circumstances of this case we have no difficulty in concluding that this test has been met.

23. The complainant takes the position that she was constructively dismissed from her employment. The doctrine of constructive dismissal is not applicable based on the facts of this case. In order for it to apply, the employer must have unilaterally changed a term or condition of Ms. Nicholls employment. To amount to a constructive dismissal, the change must affect a funda­mental term of the employment contract. Changing an employees remuneration, benefits, job con­tent, job status, job duties or demoting the employee, are examples of situations which could lead to a finding of constructive dismissal. (See "Constructive dismissal" in Employment Law Manual -Wrongful Dismissal, Human Rights and Employment Standards Toronto: Carswell, 1990; Mole, Ellen F. "Constructive dismissal" in Wrongful Dismissal Practice Manual. Toronto, Butterworths, 1984 and Harris, David. "Constructive/dismissal/unilateral change." in Wrongful Dismissal. Don Mills, Oat.: DeBoo Publishers, 1990).

24. After reviewing the evidence in this case the Board concludes that Ms. Nicholls was hired in March, 1990 after having been fully apprised of the terms and conditions of her employ­ment, particularly with regard to the policies and practices concerning smoking in the workplace. She worked without complaint until July, 1990. At that time she raised concerns with regard to the heating ventilation and air conditioning system. This complaint was taken seriously by the respon­dent and the system was repaired. It is also important to remember that her complaint was not directed at the smoking policy or practices, but dealt with an equipment malfunction. The com­plainant did not raise any further concerns with regard to smoking in the workplace until Novem­ber 16, 1990. She therefore worked under the same terms and conditions of employment with regard to smoking, for approximately eight months without complaint. On November 16, 1990 the complainant unilaterally determined that these terms and conditions were no longer suitable and wanted them changed. The employer looked at ways to accommodate her, but in light of her demands for a totally smoke free work environment, determined that accommodation was not pos­sible. When Ms. Nicholls did not get the accommodation she sought, she quit. The employers inability to change the terms and conditions under which she had been working, not any positive act on their part, resulted in her tendering her resignation. The doctrine of constructive dismissal is therefore not applicable.

25. The only remaining issue to be dealt with is the objection raised by the respondent as to the timeliness of this complaint. Having dismissed the complaint on its merits it is unnecessary to decide this issue and we decline to do so. For the reasons outlined above we find that there has been no breach of section 24(1) of the OHSA nor has the company breached section 8, 2 or 5 of the SWA. This complaint is dismissed.

DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG; October 4, 1991

1. The majority has dismissed this complaint under section 24(1) of the Occupational Health and Safety Act (the "OHSA") based on their finding that the complainant resigned her employment and did not attempt to rescind such resignation. In addition, the majority held that the doctrine of constructive dismissal is not applicable to this case. With respect, I must dissent from both of these conclusions for the reasons which follow.

THE FACTS

2. In my view, the evidence in this case illustrated a course of action by the respondent which by design brought about the complainant's resignation. The complainant raised concerns about the problem of smoke in the workplace and how this problem adversely affected her health and safety. She tried to get the respondent to ameliorate the condition. The company did not respond to her concerns. As a result, the complainant felt compelled to resign her employment and verbally communicated her sentiment to her supervisor. The complainant subsequently learned through another employee about the respondent's plans to establish a smoking committee. This committee had as its mandate to look into and establish a smoking policy for the respondent's establishment. On learning of this change in policy, the complainant quite naturally sought to rescind her prior verbal resignation. The respondent denied this request. The complainant subse­quently presented a letter of resignation.

THE LAW

3. The OHSA, R.S.O. 1980 ch. 321 is a remedial piece of legislation which holds among its objectives the protection of the health and safety of workers. In keeping with this objective, the Act provides a mechanism for workers to refuse work which they believe to be "likely to endan­ger" them. In addition, through section 24(1) of the OHSA employers are expressly prohibited from taking reprisals against workers who" act in compliance with the OHSA, or the regulations or an order made thereunder".

4. Rights, obligations and duties under the legislation stem from three sources, namely, the OHSA, the regulations or orders made pursuant to the OHSA or regulations. Article 131 of Regulation 692 reads as follows:

An industrial establishment shall be adequately ventilated by either natural or mechanical means such that the atmosphere does not endanger the health and safety of workers.

5. The effect of the above quoted article in the Regulation is to place a legal obligation on the respondent to, at a minimum, provide reasonable accommodation to employees in the com­plainant's position. This interpretation is consistent with the statutory requirement which requires that a remedial statute be given such large and liberal construction and interpretation "as will best ensure the attainment of the object of the OHSA according to its true intent, meaning and spirit." (Interpretation Act, s.10, R.S.O. 1980, ch.219)

THE DOCTRINE OF CONSTRUCTIVE DISMISSAL

6. It is well established that the breach of a fundamental term of the employment relation­ship by the employer will give rise to liability should the employee elect to treat that breach as a repudiation of the contract of employment. This form of action or claim is known as constructive dismissal. Demotion, geographic transfer and change in remuneration have typically been held to constitute constructive dismissal. (see for eg. Kidd v. Southam Press Ltd. (1983), 1 C.C.E.L. 167; Nyveen v. Russel Food Equipment Ltd. (1987), 19 C.C.E.L. 227)

7. The facts and circumstances that will give rise to a claim of constructive dismissal are not closed. This is especially true in light of the numerous statutory instruments that regulate the employment relationship. Indeed, it can and has been suggested that the breach of a statutory right such as the right not to be treated in a manner contrary to the Human Rights Code may well con­stitute constructive dismissal.(see The Law of Wrongful Dismissal in Canada, Canada Law Book Inc., 1985; Howard Levitt at p.63) The recent case of Paitich v. Clark Institute of Psychiatry (1988), 19 C.C.E.L. 105 (Ont.H.C.) affmd (1990) 30 C.C.E.L. 235 (Ont.C.A.) provides support for the view that the facts and circumstances that will give rise to constructive dismissal are not closed. The Supreme Court of Ontario held that an employee who had been exposed to harass­ment and unjustified criticism from his supervisor and denied an opportunity to transfer was con­structively dismissed. The court based its finding of constructive dismissal on two grounds, namely, the abusive treatment of the supervisor and the failure of the employer to assist the plaintiff by relocating him. Clearly, this decision suggests that any breach by the employer of a major term of the employment relationship could constitute constructive dismissal.

CONCLUSION

8. Having found on the evidence that the respondent has refused to provide the reason­able accommodation called for by the statute and denied the complainant the opportunity to rescind her resignation, I would allow the complaint on the ground that the complainant was con­structively dismissed by the respondent in contravention of section 24(1) of the OHSA.