Wade Dennis Procter v. Whitler Industries Limited, 1991 CanLII 6077

[1991] OLRB Rep. May 718

3248-90-OH Wade Dennis Procter, Complainant v. Whitler Industries Limited, Respondent

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

APPEARANCES: Linda Vannucci-Santini and Wade Procter for the complainant; R. N. Parker for the respondent.

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER R. R. MONTAGUE: May 3, 1991

1. The name of the respondent is amended to read; "Whitler Industries Limited".

2. This is a complaint under the Occupational Health and Safety Act ("the OHSA") to the effect that Mr. Procter was laid off because of his compliance with the OHSA or his attempts to enforce it. The employer responds that his health and safety activity was no part of the reason for the lay-off.

The Facts

3. Rod Parker, the owner of the respondent company, gave evidence on behalf of the employer. Wade Procter, the complainant, and his coworkers, Roger Kennedy and Brian Bird, gave evidence on behalf of the complainant. The relevant facts are summarized below.

4. The respondent operates a small wood-working shop in Peterborough, Ontario, where kitchen cabinets and counters are manufactured and assembled for home installation. There were approximately eight employees in the wood-working shop at the time of Mr. Procter's lay-off. Starting early in February, due to a planned business expansion, the company advertised for new employees. The employer planned to upgrade both its machinery and the skills of its employees. Mr. Parker testified that these plans required the reorganization of the plant which made the jobs of Mr. Procter and Mr. Bird redundant. He was intending to reallocate people from jobs in the assembly and finishing areas of the wood-working plant to the table-saw area where Mr. Procter had regularly worked.

5. Mr. Parker testified that he reviewed the seniority list because he tries to abide by the seniority list, although not being bound to a collective agreement, he is not obligated to do so. He applied what he called a weighted seniority and experience factor. There was no evidence of the qualifications of the junior employees retained compared to Mr. Procter, other than their assigned tasks at Whitler. He noted that there were three people with dates of hire around September 1990, all with more than three months but less than six months experience. He said that on reviewing his requirements and the new equipment he found that at least two of the junior employees would have to be terminated by way of lay-off. He says that he chose Mr. Procter and Mr. Bird prior to February 11, because they had no exposure outside of what Mr. Parker called section 1. This is the area in which the components are cut on the saw. He hired three new employees to start February 18. The evidence indicated the resumes for these employees were received prior to February 11, but did not indicate when they were accepted for employment.

6. Mr. Procter started work with the respondent on September, 1990. He was laid-off on February 11, 1991, his first day back from a month long absence on Workers' Compensation bene­fits. Prior to February Ii, Mr. Procter had not received any complaints about his work and received a standard raise after his first month. The employer made no issue of his work record. Mr. Procter recounted an incident from December 1990 where he had repaired some equipment, sav­ing the employer expense. When speaking to the plant manager, Mr. Dalahay, about this, Mr. Dalahay indicated that if it came time to lay people off, it would be people who did things like that who would stay. Mr. Kennedy, a cabinet maker with 18 years experience, found Mr. Procter to be an excellent worker who was concerned for others' safety as well as his own.

7. From early on in Mr. Procter's employment he had taken an active interest in the state of safety and cleanliness of the wood-working shop. For example, he spent considerable time orga­nizing and cleaning up his area of the shop. It was his testimony that the shop was generally in a very unsafe state for operating table saws. As well, he said flammable material and chemicals were stored near sawdust and wood supplies. He had on a number of occasions approached his foreman, the plant manager and Mr. Parker about his concerns, which included, among others, failure to use safety guards on the table saws, sufficient clutter of debris that the saws were unable to operate properly and the employees were unable to move around freely, and failure to provide safety glasses and dust masks. When Mr. Procter spoke to the employee health and safety representative about these matters he was told to "smarten up or Rod would fire [him]". Mr. Parker, for his part, had thanked Mr. Procter when he raised these matters and told him something would be done about them. Mr. Procter agreed that Mr. Parker had never taken offence to his suggestions, but testified that action was not taken as promised. Mr. Parker testified that he had been informed that all necessary action had been taken.

8. Mr. Procter's absence on WCB was due to losing the top of a finger when Mr. Procter was closing an outside door to the plant dust collecting system. The door, which is quite heavy, smashed his finger before he could get it out of the way. The latch on the door did not work cor­rectly and from time to time the door would open, creating a negative pressure in the vacuum sys­tem which caused dust to blow back into the plant. It was therefore necessary for an employee faced with this problem to go close the door. It was Mr. Procter's position that the accident could have been prevented if the door to the exhaust system had had a properly working latch. It is the employer's position that the accident could have been prevented if Mr. Procter had turned off the power to the system before closing the door and that therefore it was unnecessary to repair the latch on the door, as Mr. Procter wished. Mr. Parker maintained that all employees were trained on the proper use of the door to the dust collecting system and that they should cut off the power before doing so. Mr. Procter said he received no training whatsoever and was not aware of any employee receiving any safety training.

9. On his return to work from compensation on February 11, Mr. Procter was handed a list of work which would take a number of days to complete. He found his area in a state of untidi­ness such that the saw bed would not extend fully because of debris in the way. Shortly after com­mencing work on his saw, he had the same problem with the dust collector set out above, which required him to close the door which had injured him a month earlier. He felt fear that he would injure himself, and was generally upset that the work that he had put into organizing and cleaning his work area was completely undone in his month-long absence. Furthermore, the fact that the door that injured him had not been repaired was of serious concern to him.

10. Mr. Procter went to talk to his coworker Roger Kennedy, who tried to calm him down and suggested that he speak to Mr. Brian Dalahay, the Plant Manager. Mr. Procter did so. Mr. Procter asked Mr. Dalahay why the door had not been taken care of. Mr. Dalahay "hollered" that it was none of his business and that it would be taken care of when they decided to. Messrs. Bird and Kennedy heard a commotion but could not make out the words. Mr. Procter frankly admitted that he then lost his temper and "threatened" Mr. Dalahay with health and safety authorities if he did not fix things in the plant and refused to work because of the state of his work area. Mr. Dalahay left and came back and said that he had been talking to Mr. Parker, the owner, and told Mr. Procter to go home and come back the next day to discuss it. Mr. Parker testified that Mr. Dalahay told him that Mr. Procter was out of control and did not want to work and that he was unhappy about safety. No mention of the Occupational Health and Safety Act or of any intention to investi­gate was made by Mr. Dalahay or anyone else in management.

11. Mr. Procter went from work to what he called the Health and Safety Labour Board in Peterborough and was told that they would not send anyone into the workplace at that time for fear of his being fired. Instead, the person to whom Mr. Procter spoke gave him suggestions on how to deal with the situation himself. Mr. Procter went home about 1:30 in the afternoon and received a phone call the same afternoon from Mr. Dalahay who said he was terminated. Mr. Procter was not sure of the meaning of that so he phoned the health and safety official and was told to phone the employer back and ask what he meant. He did so. Mr. Dalahay put him on hold for about five minutes and came back and said "You're laid off. You can come in and pick up your separation papers on Friday." Mr. Procter phoned the health and safety official once again and was told it was now a matter for the Labour Board.

12. Mr. Parker testified that he talked to Mr. Dalahay later in the day and he discussed with him whether there was anything else to be dealt with about Mr. Procter. Mr. Dalahay said "no" that Mr. Procter had gone home and that he would get in touch in a few days and mentioned that Mr. Procter was unhappy about the safety conditions in his area. Roger Kennedy testified that at some point in the afternoon Mr. Dalahay came over to his work area, seemed upset, and said, "Wade's out of here; I fired him," and added the comment "The place is not that bad a mess." Mr. Kennedy replied, "I've seen worse." Mr. Parker testified that Mr. Dalahay had denied saying Mr. Procter was fired and testified that Mr. Dalahay does not have the authority to fire anyone. We have no evidence from Mr. Dalahay.

13. When Mr. Procter went in to pick up his papers, they were not ready. Mr. Procter met

with Mr. Parker, asked for his job back, and discussed health and safety matters. Mr. Parker's opinion was that things were not unsafe and Mr. Procter expressed his views that they were. Mr. Procter said he was willing to compromise and would disregard his health and safety concerns if he could gel his job back. Mr. Parker said he would discuss that with Mr. Procter's foreman. Mr. Par­ker maintains what he was going to talk to the foreman about was when Mr. Procter would be ter­minated, not if he would be terminated. When Mr. Parker got back to Mr. Procter as a result of this conversation, it is Mr. Procter's uncontradicted evidence that Mr. Parker said he was being laid off not because of his work habits or because of health and safety but because of his temper. The evidence does not indicate that reorganization and/or job redundancy were ever mentioned to Mr. Procter.

14. The record of employment issued to Mr. Procter on February 18 was originally issued with no indication of the reason for lay-off on it. It was filled in later the same day with the code for shortage of work, after the Unemployment Insurance Commission pointed out to Mr. Procter that the space on the form calling for a reason was blank. Mr. Parker outlined that by shortage of work the company meant redundancy caused by the reorganization. Mr. Procter was paid up until February 16.

15. Neither Mr. Bird nor Mr. Procter heard anything about the planned lay-off until the day on which they were laid off. Mr. Bird was fired on March 12 because, Mr. Parker testified, of his work ethic and attendance. Mr. Parker made a point of saying that although he could have put down that he was just laid-off he felt that he should be put the actual reason why he was discharged regardless of what benefits Mr. Bird might receive as a result.

16. Mr. Parker testified that health and safety matters were no part of his consideration in the decision to lay off Mr. Procter. As proof of his concern for health and safety he offered the company's meritorious workers' compensation accident experience record and a voluntary inspec­tion he had arranged in January of 1990 to review the adequacy of the ventilation system in the plant. The result of that inspection was that at that period of time, the Ministry did not have cause for concern about the ventilation system for wood-work. Because the Ministry could not offer other suggestions for eliminating a noxious odour that the employees had experienced when cut­ting polyvinyl chloride, Mr. Parker declined a contract rather than risk the employees' health and safety.

17. Mr. Parker was not aware that Mr. Procter was an experienced spray painter and made no inquiries prior to the lay-off as to whether he had any of the skills needed for the new equip­ment. Mr. Procter has quite diverse experience on a number of kinds of machinery from his past work experience in a gun manufacturing plant and in spray painting metal. Mr. Parker maintains that Mr. Procter's experience at Whitler Industries did not include anything other than unskilled work. Mr. Procter said he helped in many areas and was skilled on all the equipment which was in the plant prior to his lay-off.

18. Brian Bird worked on the second table saw with Mr. Procter from October 22, 1990 until his lay-off on March 12, 1991. He testified that a new employee was hired to work exclusively on the table saw Mr. Procter had been operating from two weeks after Mr. Procter's departure for a period of approximately one month. Mr. Kennedy confirmed this testimony. Mr. Parker was not aware of the existence of this employee, who was apparently let go by the foreman because he had missed three days of work. Subsequent to that an employee who had previously worked in the fin­ishing area of the plant worked at Mr. Procter's job.

Argument

19. In his summation Mr. Parker asked us to find that there was no taint in the discharge, although he acknowledged that the timing of it was unfortunate. He stated that he had no doubt in his mind that the termination by way of lay-off was in no way tainted by Mr. Procter's health and safety activities prior to or at the time of the lay-off. He pointed to the evidence that the restructu­ring was already in place well before the lay-off. He noted that there was no dispute as to the acquisition of the new equipment or the need for experienced people to operate it. He referred the Board to the company's good safety record and assured the Board that at no time would he know­ingly or intentionally tolerate disregard for the safety of employees, because of his moral and legal responsibility. He suggested perhaps that he should have laid Mr. Procter off while he was on Workers' Compensation benefits, but that he had not wished to do so, not feeling that was morally correct.

20. On behalf of the complainant, Ms. Vannucci-Santini said that the employer had not dis­charged the onus of proof in section 24. She noted in particular the absence of any evidence from Mr. Dalahay and asked us to draw a negative inference from the employer's failure to call Mr. Dalahay as a witness. She suggested that we could conclude that Mr. Dalahay would not have been supportive of Mr. Parker's position if he had come to give evidence. As to the reason given for the lay-off, the stated reason on the record of employment is "shortage of work". Counsel submits that even on the respondent's evidence it is not a question of shortage of work, it is a question of reor­ganization of the workplace. She asked why Mr. Procter was given a week's worth of work on the morning of February 11 if he was going to be laid off on February 11. The Plant Manager made it quite clear on February 11 that he was being fired that day. Ms. Vannucci-Santini referred to Inco Metals Co. [1980] OLRB Rep. July 981, Trelford Automobile Limited, [1990] OLRB Rep. Nov. 1155, Art Shoppe, [1988] OLRB Rep. Aug. 729 and Blenkhorn & Sawle Ltd., [1990] OLRB Rep. Sept. 921 as support for her submission that this is a case which should be remedied by the Board by way of reinstatement and full compensation.

Decision

21. The issue before the Board is whether or not Mr. Procter's lay-off was in any way a response to his exercise of his rights under the Occupational Health and Safety Act.

22. The relevant statutory provision are as follows:

23.-

(3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine, device or thing he is to use or operate is likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works or is to work is likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such con­travention is likely to endanger himself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of his refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of his knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his work station.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of his refusal to work or do particular work continues to be likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works continues to be likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such con­travention continues to be likely to endanger himself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

(7) An inspector shall investigate the refusal to work in the presence of the employer or a per­son representing the employer, the worker, and if there is such, the person mentioned in clause (4)(a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the work place or part thereof is likely to endanger the worker or another person.

(9) The inspector shall give his decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4)(a), (b) or (c).

(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his work station during his normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during such hours; or

(b) subject to section 24, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the work place or the part thereof which is being investigated unless the worker to be so assigned has been advised of the refusal by another worker and the reason therefor.

(12) The time spent by a person mentioned in clause (4)(a), (b) or (c) in carrying out his duties under subsections (4) and (7), shall be deemed to be work time for which the person shall be paid by his employer at his regular or premium rate as may be proper.

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

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.

(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.

(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.

23. The Board has consistently held that these provisions mean that the employer bears the onus of showing that no part of the reason for the discharge of the employee was activity protected under the OHSA. The fact that there may be legitimate reasons coexisting with reasons prohibited by the OHSA, is not a defence to a complaint under section 24. See, among others, Commonwealth Construction Company, [1987] OLRB Rep. July 961 at paragraph 21. An employer has the right to lay-off or discipline an employee, provided that the action is not moti­vated, even in part, because an employee was seeking to exercise rights under the OHSA.

24. In this case, although Mr. Parker testified that copies of the OHSA were available in the plant Manager's office, no reference was made to them by the employer at the time of Mr. Procter's objection on the morning of February 11, 1991. The employer does not challenge the complainant's evidence that he raised bona fide safety concerns with the Plant Manager on Febru­ary 11 and refused to work because of them. We are satisfied in the face of Mr. Procter's uncon­tradicted evidence, that he made it clear to Mr. Dalahay, albeit angry himself, that he was refusing to work because he considered the workplace unsafe. The provisions of the OHSA in respect of the requirement in section 23(4) that the supervisor should investigate the report in the presence of the worker and a health and safety representative were not followed. The uncontradicted evidence is that Mr. Dalahay's immediate response to the raising of the conditions of the workplace was anger and dismissal of the complaints, basically indicating to Mr. Procter that he had no intention of doing anything about them then or in the foreseeable future. We are satisfied that Mr. Procter had reason to believe that the situation in the workplace was likely to endanger himself. The uncontradicted evidence is that the state of debris made it difficult to operate the saw safely and the failure to have the door latched properly left Mr. Procter and others in the same danger as Mr. Procter had been when he lost part of his finger a month earlier. The fact that Mr. Procter and oth­ers could have avoided such an accident by turning the power off does not make Mr. Procter's position that the state of the workplace was a potential danger one that is without foundation.

25. On that same day, Mr. Dalahay communicated to Mr. Procter that he was terminated. He also communicated to Mr. Kennedy that Mr. Procter had been fired in a context in which it was linked with the safety condition of the workplace. Although we accept that the company was in the midst of a reorganization, Mr. Procter was brought back to work with the expectation that he would work at least another week. Mr. Bird, who apparently had an unsatisfactory work record compared to Mr. Procter's, worked another month. Against this background, we are unable to accept that the sole reason for the lay-off on February 11, was the reorganization of the workplace. Mr. Dalahay played a prominent role in the lay-off and the communication to Mr. Procter of the reasons for it. The fact that we did not hear from him that there was no thought in his mind of the health and safety activities of February 11 and earlier is a serious gap in the respondent's case. Fur­thermore, Mr. Parker communicated to the Board three different reasons for the lay-off. These were reorganization, lack of work, as recorded on the record of employment, and temper, as com­municated to Mr. Procter in the exit interview. Although any of the three of those are unobjection­able reasons under the OHSA for laying off or terminating a person, the fact that a variety of rea­sons were given raises the question as to which, if any of them, was the true reason. The uncontradicted evidence was that on the morning of February 11, before the incident between Mr. Dalahay and Mr. Procter, Mr. Procter was handed a "cut list" with a week's work on it. Mr. Par­ker testified that it was intended that he would work at least a week on his return to work. No rea­son was given for merely giving him pay rather than having him do the rest of the intended work, if that was the case. Mr. Bird, the other person selected for lay-off was kept on until March 12. A new employee did Mr. Procter's job for a month before a more senior employee was reallocated to it. There was no explanation of why a lay-off for reorganisation or shortage of work resulted in Mr. Bird's being kept a month longer than Mr. Procter. When this is put together with the fact that no inquiries were made of Mr. Procter as to whether he had the skills to fill the other jobs available, we cannot be satisfied that no part of the reason for the lay-off was a response to Mr. Procter's exercise of his rights under the OHSA at various times during his employment, including the morn­ing of February 11, 1991.

26. For the above reasons we find that the employer violated the OHSA in discharging Mr. Procter. The complaint is allowed. Mr. Procter is to be reinstated and compensated for his losses due to the lay-off. We will remain seized if the parties are unable to agree on the quantum of com­pensation owing.

DECISION OF BOARD MEMBER R. W. PIRRIE: May 3, 1991

I concur in the majority decision which finds the employer violated the OHSA in discharging Mr. Procter. However, I dissent from that portion of the remedy which would reinstate Mr. Procter and I do so for the reason that it will, based on my understanding of the work organization, likely result in the lay-off of another employee with a start date prior to Mr. Procter's.