G. Ryerson v. H. H. Robertson Inc., 1991 CanLII 6047

[1991] OLRB Rep. April 492

0004-90-OH G. Ryerson, Complainant v. H. H. Robertson Inc., Respondent

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members G. 0. Shamanski and R. R. Montague.

APPEARANCES: Norm Carriere, Glen Ryerson and Terry P. Dawson for the complainant; Robert J. Atkinson and Reg Jordan for the respondent.

DECISION OF R. O. MacDOWELL, ALTERNATE CHAIR, AND BOARD MEMBER G. O. SHAMANSKI; April 15, 1991

I

1. This is the complaint of Glen Ryerson ("the complainant"), who contends that he has been discharged contrary to section 24 of the Occupational Health and Safety Act (OHSA). Mr. Ryerson claims that he was discharged because he expressed safety concerns and refused to work in an environment which he reasonably believed to be unsafe.

2. The respondent company replies that Mr. Ryerson's termination had nothing to do with his alleged safety concerns. The company asserts that the complainant was discharged because he failed to produce satisfactory medical evidence to explain a period of absence from work. The company relies upon Article 6.07 of the collective agreement which reads, in part:

Seniority shall be considered broken when:

(d) an employee is absent for a period of seven calendar days or more without reasonable cause.

In the company's submission, the complainant failed to establish "reasonable cause" for his absence, Article 6.07 is triggered automatically and he loses both his seniority and his right to con­tinued employment.

3. The hearing in this matter consumed several days during which we received a consider­able amount of oral and documentary evidence. In assessing the credibility of the oral evidence, we have taken into account such factors as: the demeanour of the witnesses when giving their evi­dence, the clarity and consistency of that evidence when tested by cross-examination, the witnesses' ability to recall events and resist the tug of self interest in shaping their answers, and what seems most probable in all the circumstances. The documents however, present a problem. Many of them contain statements by various doctors concerning the complainant's health, ability to work, or possible return to work, but none of those doctors gave evidence. Accordingly, we are not in a position to assess the basis for these medical opinions. Nevertheless, we admitted this material because it was part of the narrative, was considered by the company both before and at the time of the grievor's termination, and was arguably relevant to the exercise of our discretion under section 24(7) of the Act.

4. The relevant portions of Section 24 read as follows:

24.-(l) 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 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.

Section 24(7) of the OHSA may be usefully compared with section 44(9) of the Ontario Labour Relations Act to which we will refer later:

44.(9) Where an arbitrator or arbitration board determines that an employee has been dis­charged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.

It will be seen that sections 24(7) and 44(9) are virtually identical, with the result that an arbitrator and the Ontario Labour Relations Board have the same remedial authority; moreover both adjudi­cators may have to interpret the collective agreement to see if it contains a "specific penalty".

5. To round out the statutory picture, we might also set out section 89(4) of the Ontario Labour Relations Act which is incorporated by reference into the OHSA:

89.-(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of [the OHSA] and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to [the OHSA] it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or

acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee con­cerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employ­ers organization, trade union, council of trade unions, employee or other person jointly or severally.

Where a breach of the OHSA is established, the Ontario Labour Relations Board has broad pow­ers to fashion an appropriate remedy, regardless of the terms of any collective agreement.

6. It will be convenient to deal with the events preceding this complaint in approximate chronological order.

II

7. The company is a manufacturer of sheet metal building materials with production facili­ties in Hamilton, Ontario. It has several buildings on a thirteen acre site. The complainant is a mill­wright whose duties would ordinarily take him to all parts of that work site.

8. One of the company's products is "formawall" which consists of two metal sheets with a layer of polyurethane foam between them. Formawall is made by pouring polyurethane liquid between the metal sheets, then waiting a minute or so for the liquid to harden or "cure". While the polyurethane is in liquid form it contains isocyanates. Isocyanates are dangerous substances. A worker exposed to isocyanates may become "sensitized" so that any further exposure can pose a serious health hazard.

9. Formawall is made in an area of the plant known as the "tunnel". Under the Occupational Health and Safety Act and Regulations, the tunnel is a "designated exposure area" for isocyanates. It is the only such area on the work site.

10. In February 1987 there was a chemical spill involving isocyanates. The complainant was one of two employees on the scene, and therefore potentially sensitized to isocyanates. We say "potentially", because it was not immediately clear whether the complainant had in fact been sen­sitized.

11. As a result of the spill, the company and the union agreed to participate in an isocyanate surveillance program administered by the McMaster University Occupational Health Clinic. The complainant was examined by doctors associated with that program on June 11, 1987. The medical report following this examination states that "The medical examination and laboratory tests were based on health history, exposure data, and physical findings". The complainant was pronounced fit to work without restrictions, and, in particular, without any restrictions concerning exposure to isocyanates. There was no lost work time and for several months the complainant con­tinued to work in all parts of the worksite, including the tunnel area.

12. For a part of 1987 and much of 1988, the complainant was off work as a result of a knee injury. Towards the end of 1988 he indicated his intention to return to work and requested a fur­ther examination by the McMaster Occupational Health Clinic. The complainant explained that it had been 18 months since his last consultation with McMaster, and he wanted the physicians to reconsider his case before he went back to work. During his long absence, of course, there was no new exposure to isocyanates (or at least none of which the complainant was aware).

13. We do not know what additional testing was done in December 1988, if any, or what the complainant may have told the doctors in 1988-89 that he failed to tell them in 1987. We do know that the McMaster Clinic expressed a different opinion than it had in 1987. By letters dated December 23, 1988 and January 6,1989, Doctor D.C.F. Muir, the Director of the Clinic, advised the company that the complainant was able to return to work but now only with restrictions, namely "not to work with isocyanates; specifically, areas of tunnel and paint shop.. .plant chemist can determine where isocyanates exist". Incidental, or potential exposure could be dealt with by the use of an approved and properly fitted respirator.

14. From the company's perspective it did not matter whether the complainant was actually sensitized to isocyanates or whether Dr. Muir's opinion was tendered out of an abundance of cau­tion. It now had a millwright who could not work in certain areas of the plant. Accordingly, on January 11, 1989 the company advised the complainant as follows:

We are in possession of a letter from Dr. Muir, Director of The Occupational Health Pro­gramme of McMaster University restricting you from working in both the foam tunnel area and the paint shop due to health problems. This unfortunate news is disturbing to the company. We are very concerned about your well-being and hope this is a short term condition.

As you are likely aware, management anticipates a significant increase in foam product sales during 1989 and is spending the majority of plant-allocated funds in the foam section of the busi­ness. As a result, a much higher percentage of total maintenance labour time is required in the foam tunnel area.

As well as yourself, we have other maintenance employees with similar medical restrictions. We have an adequate volume of maintenance work in other plant areas to keep these individuals employed but cannot accommodate an additional employee at the present time. In all cases, you have less seniority rights than the other maintenance employees.

Unfortunately, we must remove you from the millwright job until you are either medically fit to

resume work in the restricted areas or an additional millwright is required in non-restricted areas.

Glen, in the near future you will be assigned to another job with due consideration given for seniority rights and C.W.S. qualifications.

As it turned out there was no reassignment. There was sufficient millwright's work to keep the complainant occupied from mid January 1989 until February 1,1989 when he left work again.

15. On or about January 10, 1989 Mr. Ryerson complained of fumes emanating from the area of a dismantled paint pump in the maintenance shop. Ordinarily there are no isocyanates in the shop. The complainant remained in the office for a couple of hours while the company investi­gated, then was assigned alternative work.

16. On February 1, 1989 the complainant reported a problem which he said he had encoun­tered while driving a tow motor through an open plant area where there are no isocyanates nor­mally present. The complainant advised Reg Jordan the Industrial Relations Manager that he (the complainant) felt ill and needed medical attention. The complainant testified that he had spoken to a plant technician and concluded that "poison fumes" were coming from a cured formawall panel, and that this was the source of his discomfort.

17. The complainant decided to report to the Ontario Workers' Health Centre which is only a few blocks from the plant. The OWHC referred him on to the McMaster Clinic. Tests performed at the McMaster Clinic showed the complainant to be "normal" at the time they were taken (i.e. about two and a half hours after the alleged exposure incident). The complainant speculated that he must have come into contact with either an airborne isocyanate or some other substance to which he was sensitive, but that by the time McMaster did its tests, the effect had subsided, so the tests were negative. There is no evidence to substantiate the complainant's speculation.

18. From February 3 onwards the complainant was off work pursuant to doctors' notes pro­vided by doctors associated with the Ontario Workers' Health Centre. On February 10, 1989, Dr. Ronald Wong wrote:

"Mr. Ryerson has a health condition in which he will be harmed if he is exposed to solvents and fumes and isocyanates. He is advised to remain off his job until a suitable environment is found for him as a millwright".

This note is similar to that of Dr. Muir the month before except that there is a conclusion of a "health condition" together with the suggestion that the company must find work for Mr. Ryerson "as a millwright" - rather than simply work he was capable of doing without isocyanate exposure.

19. We do not know the basis for Dr. Wong's finding or recommendation. He had no direct communication with the respondent and therefore may not have known that there was work avail­able for the complainant even if he was sensitized to isocyanates.

20. In a "physician's statement" dated February 10, 1989, Dr. Wong estimated that it would be six to eight weeks before the complainant could return to work. In a later statement dated March 11, 1989 Dr. Wong predicted a further six to eight weeks off. In a statement dated April 24, 1989 Dr. A. D. Reinhartz, another OWHC physician, predicted six more weeks off. We do not know what medical investigation if any, was being pursued by these physicians during this period.

21. In a physician's statement dated May 16, 1990 Dr. McLellan, a chest specialist indicated that he was referring the complainant to Dr. Hargreave at the Firestone Clinic for an assessment as to the complainant's isocyanate sensitivity. Dr. Hargreave is an acknowledged expert in the field and the Firestone Clinic works in cooperation with the McMaster Occupational Health Pro­gramme. Dr. McLellan states that he has not been actively supervising the complainant's case, however in his opinion, the complainant is "totally disabled (unable to work)", and his return to work date is uncertain. There was no communication with the company about the nature of its operations or the availability of work which would be safe for the complainant to perform. We do not know the basis for the conclusion that the complainant was "totally disabled (unable to work)".

22. Meanwhile, the company continued to advise the Workers' Compensation Board (WCB) that it had a suitable work environment for the complainant where he would not be exposed to solvents, fumes, or isocyanates. Because of the complainant's lack of seniority, this work might not be in his capacity as a millwright, but there was work for him to do even if he had a medically prescribed restriction on exposure to isocyanates. That is the thrust of the company's let­ter of January 11, 1989, and it has remained its position at all material times. The WCB was inter­ested in the complainant's condition because he had made a compensation claim asserting total dis­ability.

23. In a physician's statement dated June 23, 1989 Dr. Hargreave from the Firestone Clinic indicated a return to work date of July 17, 1989. This was the first firm return to work date that the company had received and, in accordance with its usual practice~ Wayne Orr an employee relations officer attempted to contact Dr. Hargreave in order to confirm the date. The company needed a confirmation of the return date in order to slot the complainant into the appropriate shift, with whatever work restrictions might be required. Off had been involved with the complainant's file and his ongoing WCB claim.

24. On July 12, 1989 Orr reached Dr. Marion Hepperle an associate at the Firestone Chest Clinic. Dr. Hepperle was familiar with the complainant's case. Her advice to the company was both more detailed and quite different from what the company had previously been told.

25. Dr. Hepperle told Orr that the complainant had been to the Clinic the previous week and had refused to participate further in its investigations. According to Dr. Hepperle, the com­plainant was not appearing on time for appointments, nor was he following the Clinic's instruc­tions. At one point, the clinic "hadn't seen him for months". Dr. Hepperle said that although the complainant's history and complaints suggested a possible sensitivity to isocyanates, there was no evidence to support that claim, and she had explained that to the WCB. As she put it, "it was a good story but there was no proof'. The complainant had been encouraged to return to work with a small monitoring device that could be checked periodically, however he had refused to partici­pate in this monitoring process. As far as Dr. Hepperle was concerned, the complainant could return to his regular job without restrictions.

26. The complainant confirms that he was disappointed with both the testing and the results from the Firestone Clinic, and that he refused to participate in its investigation any further. He tes­tified that as far as he was concerned there were no conclusive results. He told the Board that, in his view "no matter what the results were, they wouldn't be credible". He also testified that he was never advised of the Firestone Clinic results by Dr. Reinhartz of the OWHC nor did Dr. Reinhartz ever discuss any results with him. He testified that he really did not know if there were any results.

27. The complainant did not return to work on Monday, July 17, 1989 or on the following Monday, July 24, 1989.

28. On Thursday, July 27, 1989 the complainant came to the plant and spoke to Wayne Orr. The complainant told Orr that he was cleared to return to work as of the previous Monday, July 24, 1989 and that a confirmatory Doctor's note was in the mail from the Workers' Health Cen­tre. The complainant said that he could return to work without restriction. This, it will be noted, was consistent with what Orr had earlier been told by Dr. Hepperle.

29. Orr telephoned the Workers' Health Centre that afternoon and spoke to Bonita Clark. Ms. Clark told Orr that the complainant was indeed cleared to return to work as of the previous Monday, July 24, however, she was not sure whether there were any restrictions. She advised that a letter would be available either later that day or the following morning. She said that the week's delay (i.e. from July 17 to July 24) was occasioned by communications difficulties between Dr. Hargreave's office and the Ontario Workers' Health Centre. There had been a delay in getting Dr. Hargreave's test results. She did not explain why the complainant did not or could not appear for work during the week beginning July 24.

30. As we have already mentioned, we do not know what testing, if any, was done by the physicians at the OWHC, and it was certainly reasonable for them to await the findings of the Fire­stone Clinic, before making any firm recommendation. On the other hand, as far as the company was concerned, it had been advised that the test results were negative and that the complainant could return to work, without restrictions, as of July 24, 1989.

31. The grievor did not report to work for the week beginning Monday, July 31, 1989, or the following Monday, August 7, 1989.

32. On Thursday, August 10, 1989 the complainant came to the plant and presented Wayne Orr with a new note from Dr. Reinhartz of the Ontario Workers' Health Centre. That note is dated August 8, 1989 and provides:

"Mr. Ryerson may return to work. He must avoid isocyanate exposure

However the complainant told Orr that, despite the note, he did not wish to return to work that week. The complainant asked that the week of August 8-11 be treated as holidays. Orr replied that he was not authorized to grant vacation requests. He told the complainant that the issue should be taken up directly with David Rowthorn, the Production Manager.

33. Orr brought these matters to the attention of David Rowthorn and Reg Jordan and was told to seek clarification from the complainant's Doctors about both the unexplained period fol­lowing July 24 and the extent of the complainant's isocyanate restriction. From the company's per­spective, the most recent note was no different from the one provided by Dr. Muir eight months before while, in the meantime, the complainant had been off work and purportedly unable to do any work at all because of an isocyanate sensitivity. Dr. Hepperle from the Firestone Clinic had recently advised that, after testing, there was no evidentiary basis for that claim, yet Dr. Reinhartz was, once again prescribing an isocyanate restriction. Dr. Reinhartz's opinion had allegedly been delayed because of the late delivery of results from Dr. Hargreave and was purportedly based upon those results, but the company had been told that those results were negative: they did not establish any isocyanate sensitivity, nor warrant any special work restrictions. And, during all of this period the company had work available which would not have exposed the complainant to sol­vents fumes or isocyanates in any event. Finally, when the complainant did eventually show up for work, two weeks later than the anticipated return date, he had no explanation and asked for more time off as holidays. Jordan and Rowthorn decided to press the complainant for an explanation, and to invoke article 6.07 if a satisfactory explanation was not provided. The company was pre­pared to defer to the doctors' opinions for the period preceding July 24, but for the period thereafter, the company wanted affirmative medical evidence that there was reasonable cause for the complainant's continued absence from work.

34. Around this period (the witnesses were not sure of the date but it was probably on August 10) there was a brief meeting involving the complainant, David Rowthorn, and a union official. Reg Jordan had occasion to look in on that meeting, which Jordan described as a heated discussion about Mr. Ryerson's situation. Jordan took the opportunity to make it plain to the com­plainant that the company was concerned about the medical statements it had received, and, in particular, the period following July 24 when the company understood the complainant to be capa­ble of returning to work (albeit perhaps with restrictions) but he had not in fact reported for work. Jordan stressed that the company required medical verification for that period of absence. The grievor replied that there should be no trouble providing such information.

35. The complainant did not report for work on Monday, August 14, 1989 or Tuesday, August 15, 1989.

36. On Wednesday, August 16, 1989 the complainant appeared at the company's premises and demanded a meeting. There was no advance notice, nor did the complainant indicate what the meeting was to be about; however the complainant did ask for the presence of union officials and safety representatives.

37. The complainant's vacation request was the first item discussed at the meeting, and the company, once again, linked the vacation authorization to its demand that the complainant pro­vide medical verification for his alleged inability to return to work after July 24. By this time, of course, the grievor had already taken off the days in question without authorization. The only issue was whether such authorization would be given after the fact.

38. The complainant told the company officials that he could provide the required medical verification, but that he was refusing to work pursuant to section 23 of the Occupational Health and Safety Act because the entire plant constituted an unsafe environment. The complainant indi­cated that he was not prepared to work in any part of the plant without a guarantee of safety, nor was he prepared to participate in any inspection of the plant premises. He said he would wait out­side while such investigation was undertaken. The complainant testified that he did not believe that the company had 'undertaken periodic plant-wide isocyanate testing, which he believed to be legally required. He said that he did not know what he was "walking into" and feared for his safety.

39. The complainant was closely cross-examined on this point. He was reminded that on August 10 he had expressed a desire to return to work and raised no concern at all about his health, yet on August 16 he claimed the entire plant was so hazardous he could not even accom­pany the government inspectors to facilitate their investigation. He was also reminded that if the workplace were totally unsafe for someone with his alleged health condition, he might not be able to claim reinstatement. If there was, in fact, no work that he could safely perform anywhere in the plant he is simply unsuitable and has lost nothing from his termination; (or to put the matter more accurately: he is left to persuade the WCB that he has a valid disability claim). The complainant was asked how it was that the plant (or a part of it) was safe at the time of the hearing but was not safe on August 16, 1989.

40. The complainant did not have a very satisfactory reply. He said that he thought the entire plant was unsafe because he did not think the company had done certain testing which he believed to be legally required, to ascertain the presence of isocyanates. He assumed that the com­pany has now done such testing so the plant is now safe for him. However, there is no evidence about what testing the company has done or might be legally obliged to do, no evidence that he raised that particular concern with the Ministry of Labour officials, and, if he did, no indication in their report of any default on the employer's part. Nor is it clear how any of this justifies the com­plainant's blanket work refusal on August 16 or his absence between July 24 and August 16. The company was accommodating other workers with specific sensitivities, was prepared to accommo­date the complainant, if necessary, and was already participating in a medical program to monitor and avoid isocyanate problems. As company counsel put it: the complainant's doctors, after exten­sive testing and discussion had authorized his return to work. What did the complainant allegedly know (or fear) that his doctors did not? Obviously, isocyanates are dangerous chemicals which must be handled with care, but their mere presence in the workplace does not, in itself, warrant a blanket work refusal, nor, in the complainant's case justify his actions on August 16.

41. After a short discussion those present at the August 16 meeting decided to follow the steps prescribed by the Occupational Health and Safety Act and summon an inspector from the Ministry of Labour. C. Brand, the Plant Chemist contacted the Industrial Health and Safety Branch and advised that the complainant was refusing to work because of possible exposure to iso­cyanates from handling cured formawall panels. This was the only concrete concern which the complainant had identified. Mr. Brand expressed the opinion that it was exceedingly unlikely that unreacted isocyanate or isocyanate vapour would be present in fully cured panels, however the Ministry was invited to investigate and make its own assessment.

42. Ministry Officials appeared the following day to conduct their investigation. The details of that investigation are summarized in a memorandum dated September 6, 1989 and need not be repeated here. It suffices to say that the investigation involved a joint hygienist-medical team which entertained all of the parties' representations, considered the complainant's work history and conducted its own independent enquiry. In their report, K. Oliver (Hygienist) and Dr. B. Campbell conclude:

Based on information obtained at the visit, and on subsequent analysis of cured foam, it is con­cluded that the work areas in which the refusee would be expected to work, namely, the main building production area, the coil warehouse, the roll forming building, the paint shop, and the shipping and receiving department are considered safe for the average normal healthy worker in respect to isocyanate exposure. However, a worker who is sensitized to isocyanate, may react to minute levels of MDI in the air, that is at levels which are well below the exposure standard. The decision as to whether a worker is sensitized to isocyanates must be made by the worker's examining physician only after receiving a report of further assessment.

Because the refusee declined to sign a consent form for release of relevant medical information, from the refusee's examining physician(s) to the Ministry of Labour medical consultant, the medical information is incomplete; therefore, the investigating HSSSB medical consultant is unable to deem that the work locations in question, are likely to endanger the refusing worker.

Should further medical information be provided, confirming the sensitization of the refusee, then this decision will be reviewed.

43. Counsel for the employer asked the complainant why, if he feared a substance to which he was particularly sensitive, he did not authorize the inspection team to explore that problem with his doctors. After all, for some months those doctors had been considering both his alleged isocya­nate sensitivity and his ability to work. The complainant told the Board that he did not trust the Ministry of Labour. Company counsel submits an alternative explanation: the complainant knew that his work refusal was illegitimate and that his assertions would no longer be supported by his doctors.

44. For completeness we might here mention the opinion of the claims branch of the WCB which, at the time, was considering the complainant's compensation claim. The company was aware of the WCB's opinion prior to the complainant's termination. In a letter to the complainant dated August 15, 1989, an Official of the WCB said, in part:

All the available medical information was reviewed by the Occupational Disease Department. This included the emergency hospital reports under the previous two claims, all available report­ing from Dr. Muir of McMaster University and the reports from your visits to Dr. Hargreave. The Specialist was able to perform some tests on you, but these did not confirm a relationship between your disability and any exposure to isocyanates at work. The Specialist was unable to carry out further testing because of your refusal of these. As a result, no medical opinion can be rendered on the compatibility of your disability to your employment history, at this time.

Also, your employer has confirmed they had at least two alternative jobs available to you which would not involve exposure to isocyanates, as directed by your physician. The information on file does not support that you are totally disabled as of February 3, 1989. As your employer is able to provide you with suitable alternative work, there would be no entitlement to temporary total or temporary partial benefits, as of February 3, 1989.

[emphasis added]

45. On August 16, 1989, the company sent the complainant this letter:

The Company was advised by the Ontario Workers' Health Centre that you were able to return to work on July 24, 1989. You submitted a note on August 10, 1989 from the Ontario Workers' Health Centre dated August 8, 1989 that stated you could return to work. It did not specify the return to work date.

On August 10, 1989, you asked Wayne Orr if Vacation from August 8, 1989 to August 11, 1989 (inclusive) could be granted. Mr. Orr referred you to the writer for vacation authorization. You did not seek such authorization.

At approximately 9:45 a.m. on August 16, 1989, you requested a meeting at which, Mr. J. McSweeney-Chairman Health and Safety Committee Local 4166, T. Dawson-Chief Steward Local 4166, C. Brand-Company Chairman Health and Safety Committee, Wayne-Orr-Em­ployee Relations Officer, K. King-Maintenance Foreman, and D. Rowthorn-Production Man­ager, were in attendance.

The writer advised you that a Doctor's note to cover illness from July 24, 1989 to August 8, 1989 was required within three days. You indicated that you could comply with this requirement.

You stated that you were returning to work today (August 16, 1989) but refused work for Health and Safety reasons.

You submitted [sic] note dated August 8, 1989 [sic] implied that you could return to work no later than the day after obtaining the note. You did not report for work within seven calendar days after that and are therefore subject to termination. (Article 6:07 Collective Bargaining Agreement).

In the interest of harmonious employee/employer relations, the Company will grant vacation from August 8, 1989 to August 11, 1989 and consequently eleminate [sic] the unauthorized absence associated with these days if you present an acceptable Doctor's note which certifies your illness for the period July 24, 1989 to August 8, 1989 by August 21, 1989. To clarify the word "acceptable" we would require written confirmation that, contrary to the opinion of the medical authorities at the Ontario Workers' Health Centre, there was a further overriding medi­cal reason for your non attendance at work.

Please note that your employment at H. H. Robertson Inc. is terminated if you do not comply with the above.

46. The complainant testified that he received the company's letter and understood its concern about the period following July 24, but thought that all that was necessary was a note from his Doctor that specifically stated that he was cleared to return to work as of August 8. We do not accept this testimony. In view of what was said on August 10, repeated at the meeting of August 16, and confirmed in the letter of the same date, the complainant could have been under no illu­sions about the company's concern or what he was required to do to meet it.

47. The complainant testified that he did not bother to show the August 16 letter to Dr. Reinhartz nor did he ask Dr. Reinhartz to deal specifically with the period July 24 - August 8 about which the company was concerned. On August 17, 1989 Dr. Reinhartz gave the complainant this note:

"Concerning my note of August 8, 1989 on Mr. Glen Ryerson: he may return to work as of August 8,1989, and must avoid isocyanate exposure."

There was no explanation for the complainant's absence from July 24 to August 8, or from August 8 to August 16.

48. On August 18, 1989 Wayne Orr told the complainant that the company wanted to know why the return date of July 24 had been changed to August 8 (if indeed it had). Mr. Ryerson replied that, in his view, the note was adequate and he did not intend to bother the doctor further. The company, however, did its own follow-up with Dr. Reinhartz.

49. On August 21, 1989 the company sent the complainant this letter:

We acknowledge receipt of your note dated August 17, 1989 from the Ontario Workers' Health Centre bearing the signature of Dr. A. Reinhartz.

The requirement of written confirmation that medical reasons prevented your return to work from July 24, 1989 to August 8, 1989 was not included in the note. The Company contacted Dr. Reinhartz on August 21, 1989 regarding your return to work date. Dr. Reinhartz stated that he knew of no medical reasons why you could not return to work on July 24, 1989.

The Company feels justified in severing the employment relationship but is willing to extend the period for submission of an acceptable Doctor's note.

Termination of your employment will remain in effect if you do not submit such a note, com­plete with overriding medical reasons for your non attendance at work from July 24, 1989 to August 8, 1989, by August 25, 1989.

[emphasis added]

50. On August 24, 1989 Wayne On had occasion to speak to the complainant and remind him that his termination was not effective until August 25 and that discharge could be avoided if he provided appropriate medical evidence for the period in question. The complainant did not do so. As of the completion of the hearings, the complainant has still not provided the information which the company sought, nor did the complainant call Dr. Reinhartz to clarify or contradict what Rein-hartz is alleged to have said to the employer. In the circumstances we feel justified in concluding that the conversation was as recorded and recounted by the company.

51. We emphasize, once again, that we are not in a position to determine whether what Reinhartz told the company was true, any more than we can determine whether what Dr. Hep­perle said was correct, or whether the WCB assessment was accurate, or whether the Health and Safety Inspectors' conclusion was warranted. But all of these judgements were available to the company at the time it decided to discharge the complainant, and they all point to the same inference: for the period after July 24, there was no medical basis for the complainant's continuing absence from work.

52. The complainant filed a grievance alleging that he had been discharged without just cause, however, pursuant to section 24(2) of OHSA, the complainant has elected to bring his case to the Ontario Labour Relations Board.

III

53. The respondent acknowledges the legal onus upon it, but argues that the complainant's discharge was wholly unconnected with his alleged safety concerns or the work refusal on August 16. The discharge did not occur "because" the complainant was engaged in protected activity. In fact, counsel submits, the work refusal occurred "because" there were mounting grounds for dis­charge and the complainant knew it. The "writing was on the wall": the company was suspicious, and the complainant knew that if pressed, his doctors would not support his absence after July 24. His only option was to find some other reason for not coming to work - first the holiday request, and later the spurious claim that the entire workplace was unsafe. The respondent argues that there was no breach of section 24(1) and no factual or legal basis for applying 24(7).

54. Counsel asserts (despite Board cases to the contrary) that a breach of section 24(1) is a prerequisite before 24(7) can be applied; and in any case, the complainant cannot invoke 24(7) when his discharge was not related to safety at all. As counsel puts it: this is a safety statute, and the Legislature could never have intended the "free arbitration" of a discharge imposed for rea­sons entirely unrelated to safety. In the alternative, the employer contends that there is no equita­ble basis for granting relief, where the complainant has abused the right to refuse unsafe work pro­tected by section 23 of the OHSA. Counsel proposes a simple test: if the matter is "about safety", then the Board may intervene, but if the employment consequence complained of is not motivated, at least in part, by "anti-safety" animus, no 24(7) remedy is available. An employee is left with his/her remedy, if any, at arbitration. Indeed, counsel asserts that the Board may deal only with the safety aspects of the situation, and it is up to an arbitrator to deal with anything else - even if that means two tribunals considering the facts surrounding the discharge.

55. The complainant replies that his termination was motivated, at least in part, by his work refusal on August 16. The coincidence in time is too striking to ignore, and termination is not even contemplated by the wording of article 6.07 upon which the company purports to rely. Counsel argues that it was reasonable for Mr. Ryerson to be worried about his work environment and to conclude that his termination occurred because he expressed those worries; moreover, he is pro­tected by 24(7) even if it turns out that he was wrong or unduly cautious. Counsel urges the Board to bear in mind the inherent danger of isocyanates, the complainant's work experience, and the concerns of the various physicians who have considered his condition. In the complainant's submis­sion, there is a breach of section 24(1), but even if the Board decides otherwise, there is no basis for the complainant's termination and 24(7) permits the Board to intervene. In enacting 24(7) the Legislature intended that the Board deal with "the whole ball of wax", just as an arbitrator would do, and in this case, there is no just cause for discharge.

IV

56. Before turning to legal considerations, it may be useful to summarize our conclusions of fact. As we have already mentioned, in reaching those conclusions, we have taken into account both the witnesses' relative credibility, and what appears to us to be most probable in all the cir­cumstances. On that basis, therefore, we make these findings:

57. The complainant was not discharged because of his work refusal on August 16, 1989 or because he was acting in accordance with or was seeking compliance with the OHSA. He was discharged because he was absent from work for more than seven days without reasonable cause. With growing scepticism about the complainant's various doc­tor's notes, the company decided prior to August 16, that if he did not provide medical justification for his latest period of absence he would be discharged. He did not. He was.

58. The complainant did not provide either his employer or the Board with a reasonable explanation for his absence.

59. On August 16, 1989, the complainant had neither a reasonable nor bona fide belief that the workplace was unsafe for him. There was no bona fide exercise of rights pursuant to section 23 of the OHSA, and no bona fide effort to seek compliance with the OHSA.

60. The grievor had no reasonable basis for refusing to cooperate in the investigation process which his work refusal had triggered; and, in particular, there was no basis for refusing to share medical informa­tion with the team from the Ministry of Labour.

61. The complainant did honestly believe that his work refusal on August 16 had at least something to do with his discharge that day, even though we have found otherwise. To that extent, the complaint itself has not been made in bad faith or for any improper purpose. It falls within the potential ambit of section 24(1), even though the work refusal itself was unjustified.

V

57. The origins and purpose of the OHSA have been canvassed at some length in Inco Metals Co., [1980] OLRB Rep. July 981, in a long passage to which we might usefully refer:

58. The foregoing provisions give, for the first time, an employee a statutory right to refuse to perform work in unsafe conditions without fear of reprisal from his employer. This Board must interpret and apply the Act bearing in mind the shortcomings of the pre-existing law that it was designed to remedy. Arbitral jurisprudence had previously provided some protection to employ­ees governed by a collective agreement under which they may only be discharged for just cause. Arbitrators have traditionally adjudicated whether the refusal to perform work that is unduly dangerous is just cause for the discipline or discharge of an employee. (Re Steel Co. of Canada Ltd., (1973), 1973 CanLII 2143 (ON LA), 4 L.A.C. (2d) 315 (Johnston); Re Mueller Ltd. (1974), 1974 CanLII 2375 (ON LA), 7 L.A.C. (2d) 282 (Hinne­gan); Re International Nickel Company of Canada Ltd.,(1968), 1968 CanLII 1223 (ON LA), 19 L.A.C. 118 (Weatherill)).

59. It is also arguable that at common law it was the right of an employee to refuse to perform work in conditions that are so dangerous as to be unlawful. In fact that protection has proved illusiary [sic]. Firstly, safety laws and regulations might not cover the many kinds of situations that arise in different industrial settings. As a result even though the law of master and servant might prohibit the discharge of an employee for a refusal to perform work that is unlawful, the lines of illegality were often blurred and sometimes non-existent. Secondly, there was no ready, practical procedure by which a rank and file employee could vindicate his common law right not to be discharged for a refusal to perform unlawful work. The time and cost of civil litigation to enforce that right effectively put it out of the reach of the very employees who most needed it.

60. There are several obvious shortcomings to collective agreements as an exclusive means of protecting the safety of workers. Firstly, that protection extends only to those employees who are organized. It is not available to the substantial number of employees who do not have trade union representation or a collective agreement. And even for organized employees that protec­tion can be uncertain or sporadic. A union, with control over the decision to file a grievance, may not agree with a complainant's view of what is unsafe. And to the extent that a collective agreement may lapse during the "no contract" period, the right to file a safety grievance is sus­pended. (See, Re Communications Union Canada and Bell Canada (1979), 1979 CanLII 1739 (ON HCJ), 23 OR. (2d) 701 (Div. Ct.)). The arbitration mode has also been criticized in that the focus of attention is pri­marily on discipline, and only indirectly on safety. (See, Ison, Occupational Health and Wildcat Strikes, (Reprint Series No. 45, Industrial Relations Centre, Queen's University)). Moreover, collective agreements may not provide the kinds of safety policing mechanisms incorporated into The Employees' Health and Safety Act. As a result, when a grievance over discipline for the refusal to perform unsafe work reaches an arbitrator the evidence may be less finely tuned because of the absence, during the precipitating incident, of input by health and safety commit­tee members from both management and employee ranks. The evidence, and the practical pos­sibility of resolving the problem, can also suffer without the objective input of qualified govern­ment safety, engineers and inspectors. The enactment of The Employees' Health and Safety Act, can, therefore, be viewed as confirmation that the Legislature recognized that industrial arbitra­tion and the common law did not provide adequate protection to employees confronted with unsafe working conditions.

61. It would appear that previous statutory protection was also found to be inadequate. The main vehicle of worker protection was The Industrial Safety Act, 1971, SO. 1971, c. 83. A wide ranging statute that had grown into a creaky machine, it had its origins in the late nineteenth century response to abuses of the industrial revolution. First enacted as the Ontario Factories Act, 1884 (47 Vict. c. 39) it became The Factory Shop and Office Building Act, 1913 (3 & 4) Geo. V. c. 60). Until its repeal by The Industrial Safety Act, 1964, S.O. 1964, c. 45 s. 39; The Factory Shop and Office Building Act grew, piecemeal, into a catch-all of protections for employees. It forbade the employment of children. It provided a registry to monitor the employment of youths, young girls and women. Among other things it regulated hours of work, required that young girls and women be supplied with chairs and made general provisions for adequate lighting, heating, fire escapes, ventilation and cleanliness in work places. It was not, however, within the power of employees to enforce the legislation. Enforcement required the order of an inspector who could either order corrective measures or close down an operation if necessary. As late as 1964 an employer in breach of a provision of the Act was liable to be fined not more than $200.00 for an offence.

62. At the same time a panoply of other statutory provisions evolved to govern health and safety in particular areas of industry. Among these are The Operating Engineers Act, R.S.O. 1970 c. 333; The Public Health Act, R.S.O. 1970 c. 377; The Elevators and Lifts Act, R.S.O. 1970 c. 143; The Boiler and Pressure Vesseis Act, R.S.O. 1970 c. 47; The Workmen's Compensation Act, R.S.O. 1970, c. 505; The Power Commission Act, R.S.O. 1970, c. 354, The Construction Safety Act, R.S.O. 1970, c. 81; The Construction Hoist Act, R.S.O. 1970, c. 80; The Mining Act, R.S.O. 1970, c. 274; The Silicosis Act, R.S.O. 1970 c. 438; The Loggers Safety Act, SO. 1962-62 c. 76; The Energy Act, SO. 1971, c. 44; The Department of Labour Act, R.S.O. 1970 c. 117; The Gasoline Handling Act, SO. 1966 c. 61. While legislation in particular areas of hazard such as those covered by the foregoing statutes is necessary, the enactment of The Employees' Health and Safety Act reflects the Legislature's view that the trade-by-trade method of legislation can never be sufficient. Such particularized legislation tends to be enacted in response to, and not in anticipation of, safety and health problems that arise as new technologies are introduced into the work place. Because of the rate of technological evolution, with new processes, chemicals and machinery being introduced into places of employment on an almost daily basis, the impor­tant protection of these specialized safety statutes can never entirely keep up. Moreover, such legislation is often effective only to the extent that it can be enforced by the limited resources of government inspection and monitoring. Perhaps the greatest shortcoming of trade-by-trade leg­islation is that such laws tend to cover only the most pressing and high profile areas of hazardous work.

63. Before the passage of The Employees' Health and Safety Act, there was a growing awareness that the common law protections, traditional collective bargaining mechanisms and safety laws and regulations tied to specific industries simply weren't adequate. In Ontario a Royal Commis­sion found serious shortcomings in safety enforcement mechanisms then in place. (Ont. Report of the Royal Commission on the Health and Safety of Workers in Mines (Toronto, Queen's Printer, 1976 - Ham Report)). The report expressed concern that there had been 213 fatalities recorded in the Province's mining industry in the decade 1965-74. The frequency of fatalities per man-hours worked in logging, sawmilling and veneer milling was found to be twice as high. (See Report of the Royal Commission p. 131). The Legislature obviously shared the conclusion of the Royal Commission that existing health and safety laws and procedures were inadequate to pre­vent what had become an unacceptably high toll of industrial fatalities and injuries in the Prov­ince. The Report, which became the impetus for reform legislation, is notable for its depth of research and the strength of its conviction that the most important thing to come out of any pro­duction facility is the production worker himself.

64. In Ontario the right to refuse unsafe work was viewed by the Legislature as sufficiently important to be incorporated as an express provision in The Employees' Health and Safety Act. It has been continued in successor legislation, The Occupational Health and Safety Act, 1978, SO. 1978, c. 83, ss. 23, 24. Given the history and purpose of the statutory right of workers to refuse to perform unsafe work, the provisions of section 2 of The Employees' Health and Safety Act, must be given a liberal and constructive interpretation that is consistent with the intention of the legislation.

65. The OHSA is a remedial package which creates new rights and imposes important responsibilities on all members of the workplace. A worker is required by section 17 to work in accordance with the Act and its Regulations, and to report any contravention or hazard to his/her employer. A worker is prohibited from working in a manner which may endanger himself/herself or other workers. A worker has a right to refuse unsafe work in circumstances set out in section 23, and is protected from reprisals by section 24. A worker is expected to question, to ask for informa­tion and assurances, and, if necessary, to seek the intervention of the Ministry of Labour, even if that involves some incidental interference with ongoing production. A safe work environment is everyone's responsibility.

66. As a result of the Occupational Health and Safety Act, a worker is no longer confined to the legal regime established at common law or under the terms of a collective agreement, for as the Board observed in Inco it was a dissatisfaction with the legal status quo which prompted the pas­sage of the OHSA in the first place. Under the OHSA, a worker's rights are statutory rather than contractual, and the Ontario Labour Relations Board has been given new responsibilities to give effect to them. The legislation is more than a bundle of individual rights, worker protections, regu­lations and penal provisions. It is an integrated whole designed to bring to light and resolve safety concerns. It introduces a new process which supercedes what went before.

67. Against that background, there is no obvious reason why the Board should defer to, or prefer the piecemeal approaches of Courts or arbitrators, unless the language of the legislation and utilitarian considerations clearly point in that direction. Rather, we think we should interpret the statute in a manner most likely to promote workplace safety, and most likely to provide an expedi­tious, economical and final resolution of workplace disputes.

68. In the instant case, the interpretation of section 24(1) poses no real difficulty because we have found that the complainant was not discharged because he was engaging in protected activity. He was discharged because he did not establish reasonable cause for his absence from work. There is no breach of section 24(1).

69. But is that the end of the matter? Having established that Mr. Ryerson's termination is neither illegal nor "safety related", can the company demand that his complaint be dismissed? Or does the Board still have to consider section 24(7) of the Act? And if section 24(7) is engaged, is this an appropriate case to exercise our discretion in the complainant's favour? In answering those questions, it is helpful to examine the structure of section 24, when read in light of the general approach and policy considerations to which we have already referred.

70. Section 24(1) defines the worker's substantive rights. It prohibits an employer from penalizing a worker who has acted in, or sought compliance with the Act. But section 24(1) does not require that the employer establish "just cause" for its position. The presence of cause may bolster an employer's explanation for its actions, just as the absence of cause may suggest an improper motive, however, under section 24(1) "just cause" or "fairness" are not the primary focus. The issue is: was the employment consequence complained of imposed "because" the worker was engaged in legally protected activity. That is a question of motive.

71. On the issue of motive, the Board has adopted an approach similar to that applied in unfair labour practice cases: if the employer was improperly motivated in whole or in part its actions are illegal (in this regard see, R v. Bushnell Communications Ltd. et al (1973) 1973 CanLII 475 (ON HCJ), 1 OR. (2d) 442 (H.C.J.); 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 (C.A.); Westinghouse Canada Ltd., [1980] OLRB Rep. April 577, affd. by the Divisional Court 80 CLLC 14062). The safety issue need not be the only or even the dominant employer motivation. It is sufficient if it is one of the reasons for the employer action under review. (See Commonwealth Construction, [1987] OLRB Rep. July 961 and more recently, Bilt-Rite Upholstering Co. Ltd., [1990] OLRB Rep. July 755.)

72. Sections 24(2)-(6) set out the way in which an aggrieved employee may seek a remedy for an alleged infringement of statutory rights. Under section 24(2) a worker in a unionized setting has the option (with union support) of pursuing an allegation of a breach of 24(1) before an arbi­trator or bringing a complaint to the Ontario Labour Relations Board. If the collective agreement requires an employer to establish "just cause" for employee discipline, the arbitration mechanism under that agreement may already provide an equally expeditious, economical, final, and binding resolution of the matter in dispute. Indeed, quite apart from section 24(1), the "just cause" umbrella may already be broad enough to address all of a worker's concerns - particularly if an arbitrator interpreting the term "just" is disposed to consider the general law (see Re Lancia Bravo Foods and UFCW Local 530P (1990) 1990 CanLII 12736 (ON LA), 11 L.A.C. (4th) 59 (Burkett)); moreover, if the dispute involves a strong element of contract interpretation, arbitration may be an attractive option even if safety issues are part of the factual mix. Pursuant to section 44(9) of the Labour Relations Act (in the absence of a "specific penalty") an arbitrator already has the authority to adjust a disciplinary penalty if it seems advisable to do so, and the parties may consider it desirable to select an arbitra­tor with whom they are comfortable or with a particular understanding of their work environment. Finally, grievance - arbitration has the virtue of familiarity: the machinery is already in place, and workers can be expected to either know about it, or get help from their union.

73. None of this is new, of course. The Legislature has merely preserved an option that was available to unionized workers prior to the passage of the OHSA and may well be broader than 24(1). However, there is nothing to suggest that arbitration is the preferable course in any particu­lar case. It is up to the employee to choose the route s/he considers most appropriate, and superfi­cially at least, it appears that the two alternatives have similar adjudicative and remedial functions. They are both intended to produce a "final and binding" resolution of the workplace dispute under review.

74. If a worker opts to proceed before the Ontario Labour Relations Board, section 89 of the Labour Relations Act is incorporated by reference so the matter is dealt with very much like an unfair labour practice. Pursuant to section 89(2), the Board appoints a Labour Relations Officer to meet with the parties to endeavour to effect a settlement. Failing settlement, the matter proceeds to a hearing. If a violation of section 24(1) is established, the Board has authority under section 89(4) to fashion an appropriate remedy. Section 103 of the Labour Relations Act gives the Board a variety of statutory powers, and sections 106 and 108 ensure that the decision of the Board is "final and binding for all purposes".

75. Section 89(4) deserves further comment, because the Board's remedial authority is both comprehensive and operates "notwithstanding the provisions of any collective agreement" (see paragraph 5 above). The Board's jurisdiction is rooted in the statute and as in the case of unfair labour practices, its exercise may involve policy considerations. In Radio Shack, [1979] OLRB Rep. Dec. 1220, at p. 1253, the Board observed:

It is trite to say that all rights acquire substance only insofar as they are backed by effective rem­edies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop "boiler plate" rem­edies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of adminis­trative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable; they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation. Remedies should also be sensitive to the interests of innocent bystanders. This means then that the Board should try and tailor reme­dies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast majority of unions and employees according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the co-operation of employers and trade unions in the day to day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and of regulation. See generally St. Antoine, "A Touchstone for Labor Board Reme­dies" (1968), 14 Wayne L. Rev. 1039; Ross, "Analysis of Administrative Process under Taft-Hartley", [1966] Lab. Rel. Yearbook 299.

On judicial review of that decision the Divisional Court said:

"So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent, and provisions of the Act itself, then the award of damages is within the juris­diction of the Board. The mere fact that the award of damages is novel, that the remedy is inno­vative, should not be a reason for finding it unreasonable".

(See Radio Shack, 80 CLLC ¶14017.) It is that perspective that the Board brings to both the inter­pretation of section 89(4) and its application where there has been a breach of section 24(1).

69. Given the wording of section 89(4), it is clear that, apart altogether from sect ion 24(7), the Board has considerable flexibility to adjust the remedy to the facts of the case before it, includ­ing situations of mixed motive or concurrent cause. That flexibility is available "where the Board is satisfied that an employer ... has acted contrary to this Act..." It requires a breach of the Act, but once that breach is found, the Board can give a broad remedy or none, without any reference to 24(7), and notwithstanding the terms of a collective agreement including any terms prescribing a "specific penalty". Accordingly, if section 24(7) is to mean anything at all, it must be seen as an additional grant of remedial authority which can be exercised when 24(1)/89(4) are not available; that is, where the employer was not improperly motivated and there is no breach of 24(1). That is the conclusion the Board reached in Commonwealth Construction, supra:

70. As noted, counsel for the respondent contended that subsection 24(7) only applies if the Board finds a contravention of subsection 24(1). We do not find that submission to be persua­sive. We interpret subsection (7) as giving the Board jurisdiction, in circumstances when the Board finds that the employer has not violated subsection 24(1) of the Act, to substitute such other penalty as to the Board seems just and reasonable in all the circumstances. In this respect we follow the approach taken by the Board in numerous prior cases (see for example Baltimore Aircoil of Canada, [1982] OLRB Rep. March 327; Inco Metals Company, [1982] OLRB Rep. Sept. 1315; Toronto Transit Commission (Wilfred George Love, Complainant), [1985] OLRB Rep. Feb. 344; Camco Inc., [1985] OLRB Rep. Oct. 1431; The Corporation of the City of Ottawa, [1986] OLRB Rep. June 798). If subsection 24(7) only applied if subsection 24(1) had been contravened, it would be redundant, as the Board already has such power in these circum­stances, by virtue of subsection 24(3), which makes all of the subsections of section 89 of the Labour Relations Act, except subsection (5), applicable with all necessary modifications to a complaint filed under subsection 24(2). Thus, the Board's power to remedy the contravention of subsection 24(1) by, for example, substituting a lesser penalty, would come from subsection 89(4) of the Labour Relations Act as incorporated into section 24 by subsection 24(3).

71. As well, the wording of subsection 24(7) on its face gives the Board the jurisdiction to substi­tute such penalty as the Board considers just and reasonable, even though the Board has not found the employer to have violated subsection 24(1) and even though the Board "determines that a worker has been discharged or otherwise been disciplined by an employer for cause". In circumstances such as those in the instant case, where the Board has determined that the employer has not breached the Act in its discharge of an employee, it is both sensible and in accord with the specific wording of subsection 7 for the Board to then inquire whether the employer's disciplinary response was nevertheless appropriate in all the circumstances. Under subsection 24(2), a worker under a collective agreement has a choice of adjudicative forum where a contravention by an employer of subsection 24(1) is alleged, and the worker may elect to have the matter dealt with either by arbitration or by filing a complaint with this Board. The Legislature has set up a mechanism under section 24 whereby the worker can have both the occupational health and safety allegation and the merits of the discipline dealt with in one forum, either final and binding arbitration or through a complaint to the Ontario Labour Rela­tions Board. The scheme of section 24, the impact of subsection 24(3), and the language used in subsections 24(2) and 24(7), support the view that the legislature intended that the adjudicative forum chosen by the worker would deal with both the alleged breach of section 24(1), and, in the event the adjudicative tribunal found the employer had not breached the Act, with the issue of whether the specific penalty imposed by the employer for cause was just and reasonable in all the circumstances. No valid labour relations purpose would be served by reading section 24(7) to any other effect.

72. Notwithstanding the submissions of the employer in this case, the view expressed by the Board in Commonwealth Construction (as well as the cases referred to therein) is neither novel nor inventive. It rests on the structure of section 24 and the simple proposition that section 24(7) means what it says: section 24(7) relief is available "on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2)" just like the "reverse onus" provision (section 24(5)), and the privative clause incorporated by section 24(4). It is the inquiry itself that makes these powers available, not a particular finding of illegality as is the case with section 24(1)/89(4). Quite frankly, we do not see how the words that the Legislature has used can mean anything else, or why 24(7) is necessary at all if not to supplement the authority provided by 24(1)/89(4). (By way of contrast, compare the "no reprisal" language in the Environmental Protection Act, which, like the Labour Relations Act, has no equivalent to section 24(7).) Section 24(7) gives the Board a discretion to review a disciplinary penalty even though there was no improperly motivated reprisal and thus no breach of section 24(1).

73. We shall consider below the exercise of the Board's discretion in the circumstances of this case. At this point, we note only that the remedial authority under 24(7) is identical to that of an arbitrator under 44(9), and it certainly looks as if the arbitrator and the Board are expected to do the same thing: consider the propriety and fairness of the employment consequence under review in light of "all the circumstances" including the terms of the collective agreement. Unlike section 89(4) which operates notwithstanding the terms of a collective agreement, the terms of the collective agreement are an important (although not the only) "circumstance" to be considered, and where a specific penalty is provided those terms will be determinative. That inquiry may well carry the adjudicator into considerations of ambiguity, extrinsic evidence, past practice, known workplace rules, established disciplinary procedures and so on. Justice and equity in an organized context may also require some consideration of seniority~ or established collective bargaining prin­ciples such as the desirability of "progressive discipline". All of these matters are "circumstances" which the Board may wish to consider along with any factors intrinsic to a safety statute and its objectives. The Board's role parallels that of an arbitrator; however, this is not such a surprising result when an organized worker has the option of having his employment consequence reviewed by an arbitrator or the Board, and the language of section 24(7) mirrors that of section 44(9) of the Labour Relations Act.

74. There are both policy and practical reasons for this legislative approach.

75. To say that the Board can only deal with those "matters" or parts of the problem which are "safety related" ignores the fact that this cannot be readily determined in advance, or in cases of mixed motive, or where, as here, a worker could reasonably believe that his discharge was moti­vated, at least in part, by his work refusal. After the case is over, an adjudicator may highlight cer­tain features of the evidence, draw inferences about the employer's "real motive", and determine the legal result. But a worker cannot be expected to do that, or to reliably guess at the employer's motive lest, at the end of the day, s/he discovers that it wasn't a safety-related reprisal after all, and therefore should have been dealt with at arbitration. Section 24(5) is in the OHSA because the worker will not know what the employer's real motive is, nor is an employer with an illegal motive likely to be very open about it. An employer who chooses to defend a 24(1) charge will always assert some innocent cause for the employee discharge or discipline, and a worker without legal training may have some difficulty distinguishing mere "injustice" contrary to the collective agree­ment from "statutory illegality" - especially when the latter may involve nice questions of mixed motive and proximate or concurrent cause. And, of course, to the extent that an employer is able to bifurcate the proceeding or derail the inquiry into a process over which it has more control, the employer can impose both cost and delay upon the aggrieved worker - something section 24 was designed to avoid.

76. In this context, it seems curious to suggest, as the company does, that if a part of its motive (perhaps "the last straw") was the complainant's work refusal, 89(4) and/or 24(7) will be available, but if that small part is absent from the equation, the complainant has no remedy at all before the Board, regardless of how objectively unjust the situation might appear or what appears to be the plain wording of section 24(7). It seems odd to say: litigate before the Board on the 24(1) issue but if you lose go to arbitration for the rest. The argument presupposes a partition of motive and action that is unlikely to exist in reality or be so obvious to the worker whom the statute is sup­posed to assist. It must be remembered that in the instant case, on the pleadings there is a prima facie case of a breach of section 24(1), and a plausible basis for the complainant's belief that when he was fired on August 16, his work refusal earlier that day had something to do with it. To that extent there is a reasonable and bona fide "safety nexus" underlying this complaint even though we have found that there has been no breach of section 24(1). It cannot be said that the complain­ant is obviously in the wrong forum or that his complaint is an abuse of process whatever we might ultimately think about the legitimacy of his work refusal on August 16. Moreover, if one looks at this problem from an organized worker's perspective - as the statute clearly does when s/he is given a choice of forum - there is nothing incongruous in the suggestion that whatever forum is chosen, the adjudicative process, considerations, and result should be the same, or that once the worker "gets his day in court" that should be the end of the matter.

77. Counsel for the respondent raises the spectre of the calculating complainant, contriving to obtain a "free arbitration" by asserting a breach of the OHSA. We are asked to envisage a parade of devious and disgruntled dischargees, flooding the Board with frivolous safety complaints as a means of harassing their employer or obtaining an "illegitimate" review of the "justice" of their terminations. But that is not this case, it has not been the Board's experience since 1979, and it is not at all obvious that the opportunity for abuse would actually diminish very much if the Board adopted this argument. A crafty complainant could still assert that there was at least some improper motivation, or a bona fide exercise of what s/he believed to be rights under safety-related legislation, and the Board would still have to entertain these representations even if, in the end, they were rejected. For example, there is not the slightest doubt that the instant case would have been litigated even if counsel's view were the law; and as we have already noted, this case is not vexatious or launched in bad faith to harass the employer or accomplish some collateral purpose.

78. To say that the Board can or should only deal with discipline matters which turn out to be "safety related" also opens the door to the corollary: that, insofar as the matter complained of is not "safety related" or only safety-related and therefore cannot be dealt with by the Board, it must be dealt with somewhere else. This is not a novel proposition in employment law where statu­tory and contractual rights often overlap, and an employee's remedies may depend upon a judge­ment of the employer's "real motivation" when there are several possibilities. In Consumers Distributing (Board File 0999-86-U; decision of May 29, 1987) for example, an employee discharge was characterized, alternatively, as a breach of the collective agreement, an unfair labour practice, and a breach of the Human Rights Code, depending upon whether the employer's action could be said to be racially motivated, anti-union, or simply high-handed and unjust. As a result, an arbitra­tor, a panel of the Board, and a Human Rights Board of Inquiry were all constituted to inquire into the reason for discharge - with the obvious possibility of inconsistent findings of fact and con­siderable cost to all parties concerned. No doubt the doctrines of res judicata or issue estoppel might simplify the situation before one tribunal or another if those tribunals were disposed to apply such principles, but, in our view, it was precisely this confusion and duplication which the legisla­ture sought to avoid under the OHSA. The objective was to obtain a "final and binding" resolu­tion of "the matter" between the parties, whether the adjudicator is the Board or an arbitrator. That is why section 24(7) is available even if there is no 24(1) breach, and that is why it is identical to section 44(9) which prescribes the remedial authority of an arbitrator.

79. Since 1979, the Board has not been inundated by complaints from wily workers assert­ing safety concerns in order to obtain an inexpensive review of their employer's actions. What the Board has encountered is the unsuccessful litigant who seeks to recast his complaint as a "statu­tory" issue in order to obtain another hearing on a matter which has already been the subject of arbitral review under a collective agreement. For example, in Great Altantic & Pacific Company of Canada Limited, [1987] OLRB Rep. May 714, an employee grieved his discharge under a collec­tive agreement, settled that grievance by accepting reinstatement without compensation then, two months later, filed a section 24 complaint to collect the lost wages. The Board said this:

80. When a worker feels that he or she has been affected by a contravention under section 24(1) of the O.H.S.A., subsection (2) requires the worker at some point to make an election of the forum in which he or she will seek a remedy. At some point, a worker must choose either to proceed before the Board or to proceed under the arbitration provisions of the relevant collec­tive agreement. See, The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283, and the cases cited therein. It is not necessary for us to define with precision at what point the worker must make an election. But having elected one forum and having obtained a determina­tion of the issue in that forum, a worker cannot then attempt to obtain a remedy in the other forum. Implicit in section 24(2) and the choice of procedures set out therein is the recognition of the undesirability of having the same issue litigated in two quite separate forums. We agree with the comments of the Board in The Municipality of Metropolitan Toronto, supra, at paragraph 10, where the Board stated that the O.H.S.A. issue raised by a grievance is not severable in the sense that one can take the just cause aspect of a discharge to arbitration and the O.H.S.A. aspect to the Board. The issue of whether the discipline was proper is one issue and with respect to that issue a worker must at some point choose in which of the two forums he or she will seek a remedy.

81. In the circumstances before us, Cullen elected to seek a remedy for his discharge by utilizing the grievance and arbitration provisions of the collective agreement between the union and the employer. Cullen's discharge grievance was settled by the union and employer with Cullen's consent. Not only did Cullen seek a remedy under the collective agreement, but a resolution of the discharge grievance was achieved which was acceptable to Cullen. In filing his O.H.S.A. complaint approximately two months after his discharge was settled, Cullen is, in effect, attempting to raise the same issue, namely the propriety of his discharge, before this Board, after agreeing to a resolution of the discharge within the process of the other available forum. The Board finds that this is an appropriate situation in which to exercise its discretion in favour of not inquiring into Cullen's complaint in Board File No. 2785-86-OH.

Similarly, in Zalev Brothers Limited, [1989] OLRB Rep. July 810, the Board said:

15. Counsel for the complainant asserted that "the matter" referred to in section 24(2) of the OHSA was only the "OHSA" issue while the Hinnegan award solely dealt with the "illegal strike" aspect. With respect, that approach was rejected in the Municipality of Metropolitan Toronto, supra, at paragraph 10, in an analysis with which this Board agrees. The "matter" is the consequence for the worker imposed by the employer (as set out in sections 24(1)(a) to (d)), not the reason for the consequence. It is the reason for the consequence which is the subject of the adjudication whether before the Board or at arbitration. If the reason is determined to be "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", the consequence is prohibited by the OHSA. Whether before the Board or at arbitration, the employer must artic­ulate its "reason" for imposing the "consequence" on the worker and that reason is subject to the appropriate scrutiny.

Both cases referred to these comments in The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283:

The "matter" referred to in section 24(2) is the alleged violation of 24(1), namely, that an employer acted to penalize a worker, as set out in sub (a) to sub (d), because the worker com­plied with or sought enforcement of the OHSA. That issue of improper (or unjust) discipline is the "matter" to be heard at arbitration or before the Board. While the respondent asserts that the undisputed fact that the complainant is no longer an active employee is as a result of layoff, there is no doubt that section 24(1) of the OHSA is integral to the grievance should the griev­ance be adjudicated in an arbitral forum. The grievance form itself refers to "termination with­out just cause" rather than improper layoff or some such language. Section 24(1) affords work­ers a right of protection from penalties for invoking the OHSA; that right is enforceable under the legislation either at arbitration or before the Board.

(See also: Scarborough General Hospital, [1988] OLRB Rep. Sept. 981; and compare Amalgamated Transit Union Local 113, [1990] OLRB Rep. Dec. 1238.)

78. None of these cases is precisely on point, but they all support the suggestion that once a worker obtains an adjudication of the propriety of discipline, whether before the arbitrator or the Board, s/he cannot litigate the matter again. The Board has not accepted the proposition that the "contractual" aspects of the discharge (etc.) are severable and properly the province of the arbitra­tor, while the "statutory" aspects are the province of the Board. What is before the adjudicator in both cases is the discharge, and an aggrieved worker is expected to raise all of his/her legal challenges to that penalty in whatever forum s/he chooses. In this regard we are attracted to the view adopted by the Court of Appeal in Bernier v. Bernier (1989) 1989 CanLII 4112 (ON CA), 62 D.L.R. (4th) 561:

The doctrine of res judicata was stated thus by Sir James Wigram V.-C. in Henderson v. Henderson (1843), 3 Hare 100 at pp. 114-5, 67 E.R. 313 (Ch.):

In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) per­mit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable dili­gence, might have brought forward at the time.

While these comments are obviously made in a different legal context, they embody sensible insti­tutional concerns which we think should inform our interpretation of section 24(2) and 24(7). Thus, in Amalgamated Transit Union Local 113 and Chapelle, supra, the Board held that an unsuc­cessful section 24 complainant could not seek to arbitrate the "just cause" of his termination because that matter had already been dealt with or should have been dealt with under section 24(7). A complaint under 24(1) puts in issue general equitable considerations under 24(7), includ­ing any effect (in an organized context) of the "just cause clause" in a collective agreement. Once the Board has addressed 24(7) and refused to exercise its discretion, there is no "just cause" issue left to be determined.

79. In our view, when a worker elects to go to arbitration under section 24(2) he has his whole case considered by that arbitrator. He cannot later come to the Ontario Labour Relations Board to pursue the alleged "safety aspect" or assert some anti-safety motive which he neglected to raise or which the arbitrator may not have considered or may have rejected. He cannot claim that the arbitrator is only interpreting the agreement, leaving the statutory breach as a reserve argument to be pursued before the Board. Similarly, if a worker puts his case to the Board under section 24(2), the Board will finally resolve the matter including any application of section 24(7). There is no "contractual part" left over to be pursued at arbitration because, if relevant at all, the contractual part is a "circumstance" which could be and should be raised under 24(7). In our opin­ion, the OHSA contemplates not only an election under section 24(2) but one adjudication of the adverse employment consequence of which the aggrieved worker complains. To put the matter col­loquially: the Board or an arbitrator will deal "with the whole ball of wax".

80. It is important to emphasize however, that while the Board has jurisdiction to apply sec­tion 24(7) on any section 24(1) inquiry, it is not obliged to intervene or modify the penalty the employer has imposed. The exercise of this power is discretionary, and in our view, should be con­sistent with both the "equities" in a particular case, and the policy considerations mentioned above. Among those considerations (in the words of the Board in Radio Shack, supra) should be a concern that "its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible". The words of the statute, the need for finality and the avoidance of multiple litigation all suggest that the Board's inquiry will parallel that of an arbitrator, however, in either case, it may be significant that a complainant has acted in bad faith or launched a vexatious proceeding or otherwise abused the important rights that the OHSA was designed to protect.

81. For these reasons, we conclude that it is open to us to apply section 24(7) even though we have found that there is no breach of section 24(1) because the discharge was not a "safety-re­lated" reprisal. The question though, is whether this is an appropriate case to modify the complain­ant's discharge and substitute some lesser penalty.

VI

82. In the instant case, the complainant has failed to establish reasonable cause for his absence from work despite being given ample opportunity to do so. Article 6.07(d) applies auto­matically, and, at the very least deprives him of any accumulated seniority. We see no reason to relieve the complainant of that consequence, which flows directly from the terms of the collective agreement and is entirely unrelated to his alleged safety concerns.

83. Whatever arguments might have been available to the complainant in the wake of Re Dwyer and Chrysler Canada Limited et al, (1978) OR. (2d) 207, the fact is that in this collective bargaining relationship these parties have always considered the conduct mentioned in-Article 6.07 to be behaviour warranting discharge. The uncontradicted evidence before us is that workers who are absent without authorization or reasonable excuse are routinely treated as having abandoned their jobs, and no one has ever questioned that proposition. In this respect, the complainant was treated in precisely the same manner as any other workers in similar circumstances. Whatever the linguistic limitations of Article 6.07, it was an established norm of this workplace that employees who fail to attend work without excuse put their jobs in jeopardy. That is why the company issued the warning letters that it did, and gave the complainant several opportunities to explain himself. And, we repeat, none of this had anything to do with the complainant's alleged safety concerns or purported exercise of rights protected by the OHSA.

84. And what of the work refusal on August 16? That does not assist the complainant either, even though that was why the complainant thought he had been fired, and was his basis for filing a complaint to the Board alleging a breach of section 24(1) of the Act. But the complainant was not discharged because of his work refusal, and that work refusal was itself illegitimate. It is at the very least ironic that we are being asked to exercise an equitable jurisdiction in the complain­ant's favour, where he was not in fact discharged contrary to section 24(1) of the OHSA, and he could not rely upon section 23, even if that had been the reason for his termination.

85. On the evidence before it, the Board is satisfied that the complainant could not and did not reasonably believe that the workplace was unsafe on August 16th. His work refusal on that day was vexatious, and was compounded by his refusal to cooperate with the Ministry of Labour team when they were investigating the very medical concerns which he now says motivated him to refuse to work in the first place. The complainant was both insubordinate and abusing the important stat­utory rights available to workers under section 23; and, for that reason alone (i.e. quite apart from Article 6.07) a disciplinary response would have been warranted.

86. In cases such as Bilt-Rite, supra, Butler Metal Products, [1988] OLRB Rep. Oct. 1003, Ministry of Community and Social Services, [1988] OLRB Rep. Jan. 50 and Imperial Oil, [1982] OLRB Rep. Apr. 580, the Board has given the OHSA a liberal interpretation to protect workers who are honestly but mistakenly trying to exercise rights under the OHSA, to comply with its obli­gations, or to seek its enforcement. In each of these cases, the complainant's honesty, prudence, or good faith were mitigating factors to be considered under section 24(7), even where it turned out that the worker was being over-cautious or mistaken, and there was in fact no breach of section 24(1). The Board has accepted the maxim that "it is better to be safe than sorry", even at the expense of some interference with an employer's operations or prerogatives, because that approach is most consistent with the purpose of the OHSA. It follows, however, that where a worker has not acted in good faith, or has abused the important rights or remedial mechanisms provided under the OHSA, these are factors which should weigh against him/her when the Board is asked to exercise its remedial discretion under section 24(7). That, too, is an important message to send to the employer/employee community.

87. Having considered the totality of the evidence, the Board is not persuaded that this is an appropriate case to exercise its discretion under section 24(7) of the Act. The complaint is therefore dismissed.

CONCURRING OPINION OF BOARD MEMBER G. O. SHAMANSKI; April 15, 1991

I have had the opportunity to read the opinion of the Alternate Chair, and agree with the facts as stated and found by him. I further agree with the ultimate disposition of this application; namely that it should be dismissed. However, I take issue with the observations concerning the Board's jurisdiction, and those respecting the interpretation and application of section 24(7). It seems to me that where, as in this case, the Board has determined that a worker was not discharged or oth­erwise disciplined by the employer in contravention of section 24(1), and there is no safety nexus linking the employee conduct and employer response, that should be the end of the matter, and section 24(7) can have no application. I simply do not think that the Legislature ever intended that, in a safety statute, a worker could seek or obtain a remedy for a termination which had nothing whatsoever to do with safety concerns. In my view, having made that finding, the Board's jurisdic­tion is exhausted.

DECISION OF BOARD MEMBER RENE R. MONTAGUE; April 15, 1991

1. Having considered the total evidence I characterize the evidence differently than the majority.

2. It is my respectful submission that the majority relies heavily on hearsay evidence of which I believe there was an excessive amount. I also believe that 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 and that burden was not met pursuant to section 24(5) of the Occupational Health and Safety Act.

3. It is my submission that Mr. Glen Ryerson had become a real thorn in the respondent's side. He had also at the time of his termination become a serious liability to the respondent and the incident of the work refusal of August 16, 1989 was "the straw that broke the camel's back", and was one of the reasons he was terminated. Mr. Ryerson fell into disrepute with the respondent beginning in February of 1987 when he insisted the union call in the Ministry of Labour inspectors regarding the isocyanate spill. This resulted in the foam line being shut down and boarded up for a period of one week until certain conditions were met. The area was also designated under the Occupational Health and Safety Act and Regulations as a designated exposure area for isocyanates. Further, as a result of the spill the respondent and the union agreed to participate in a isocyanate surveillance program.

4. For part of 1987 and much of 1988, eighteen months, Mr. Ryerson was off work with a knee injury. This does not score any points with the employer. In letters dated December 23, 1988 and January 6, 1989, Mr. Ryerson was able to return to work with restrictions. Now the respon­dent has another problem: a millwright who cannot work in all areas of its operations. The respon­dent then sends a letter to Mr. Ryerson dated January 11, 1989 which states in part:

This unfortunate news is disturbing to the respondent.

On January 10, 1989 Ryerson complained he had trouble breathing caused by fumes from an area of a dismantled paint pump. After a couple of hours of sitting in the boiler room he is then assigned alternate work.

5. On February 1, 1989 Ryerson was found outside by Mr. King. King asks, "What the fuck is wrong now?". Ryerson responds, "I became dizzy and felt my chest tightening up again so he had come outside for some fresh air". King responds, "If you can't do the job get the hell out!". Ryerson proceeds to Jordan's office, King's boss explaining the problem to Jordan. Jordan's response was "What do you want us to do about it?". I would like it noted that King was not called as a witness by the respondent.

6. On February 3, 1989 Ryerson is off work pursuant to doctors' notes. Doctors' notes or reports are submitted on an ongoing basis until July 1989. The respondent witnesses testified that they were not doctors and that they do not question doctors' notes. I have difficulty with the credi­bility of respondent witnesses on one hand stating that they were not doctors and then in July of 1989, and ongoing, questioning a number of the doctors' notes submitted by Ryerson.

7. The Board heard considerable evidence of supposed phone calls to and from a number of doctors and Ms. Bonita Clark, a worker at the Ontario Workers Health Centre, yet none of these individuals were called as witnesses by the respondent. This leads me to the conclusion that the respondent has not met its onus as per section 24(5) of the Occupational Health and Safety Act as it could have easily had these individuals testify, if in fact they said what the respondent witness testified they said. Many of the documents contain statements by various doctors concerning com­plaints, health, ability to work or possible return to work but none of those doctors gave any evi­dence. However the majority in reading of their decision speak a great deal about these doctors' notes, telephone conversations etc. to bolster their reasons.

8. The note given on August 17, 1989 by Dr. Reinhartz is very clear and unambiguous and should have been more than sufficient to justify the absence from July 24 to August 8, unless there was a hidden motive on behalf of the respondent to investigate further because of the work refusal.

9. On August 16, after Ryerson had refused as per the Occupational Health and Safety Act, the respondent terminated him the very same day. This in my opinion is what motivated the respondent to terminate Ryerson and I do hereby find that the respondent has breached section 24(1) of the Occupational Health and Safety Act. As a result I find that:

(a) The complainant's work refusal was motivated by an honest belief of danger;

(b) His fears were not groundless;

(c) The employer should have been more sensitive to the complainant's treatment and concerns by management when he had his previous attacks in the plant.

10. I would therefore order that the complainant be reinstated in his full employment with­out loss of seniority. He should also be compensated for all lost wages and benefits as a result of the discharge and I would remain seized for the purpose, if the parties are not able to agree on compensation due to the complainant.

11. On the legal questions concerning the Board's jurisdiction, and those respecting the interpretation and application of section 24(7) I totally agree with the findings of Alternate Chair MacDowell.