[1991] OLRB Rep. July 879
2687-90-OH Eric Dagenais, Complainant v. PCL Constructors Eastern Inc., Respondent
BEFORE: Susan Tacon, Vice-Chair, and Board Members G. 0. Shamanski and D. A. Patterson.
APPEARANCES: David McKee, John Cartwright and Eric Dagenais for the complainant; Norman Keith, David Gowling, Vincent Panetta and Anthony Vedlin for the respondent.
DECISION OF THE BOARD; July 11, 1991
This is a complaint alleging violation of Section 24(1) of the Occupational Health and Safety Act ("OHSA").
At the hearing, following the evidence and submissions from counsel for the respondent, the Board gave the following oral ruling.
The Board has carefully considered the submissions of counsel for the respondent and is unanimously of the view that it is not necessary to call upon counsel for the complainant for representations.
This complaint alleges that the complainant was laid-off in contravention of section 24(1) of the OH5A. The Board agrees with counsel for the respondent that the issue of the status of the complainant as steward is not relevant to the determination of this complaint except perhaps with respect to remedy. Counsel for the respondent has referred to several Board cases dealing with issues such as the reverse onus, the standard of the burden of proof, and the Board's approach in dealing with health and safety complaints. The Board does not disagree with the principles enunciated in those cases. The issue that the Board must here determine, as in each such case, is whether the reasons for the company's conduct or decision (whether dismissal, suspension or other penalty) were in any way related to the complainant's status as a health and safety representative and his activities as health and safety representative, simply put, it is the reasons proffered by the company for lay-off, in this instance, which must be subject to Board scrutiny.
In assessing the credibility of the witnesses, the Board has had regard to the usual factors going to credibility. The Board does not agree with counsel for the respondent's characterization of the credibility of the complainant and D. Cartwright. However, in the Board's view, little ultimately turns on this difference. Rather, the Board intends to focus on the reasons given by the company for the selection of the complainant for lay-off and the evidence of the company's witnesses in that regard. The Board does not intend to review that evidence and the Board's findings of fact in detail but will give some illustrations.
The thrust of T. Edginton's evidence was that the complainant was a skilled carpenter; T. Edginton (a foreman for whom the complainant worked) had no complaints with respect to the quality of the complainant's work. T. Edginton had some concern with respect to the complainant's speed but that concern was not significant enough to progress beyond one informal conversation of a general nature with the complainant. R. Metro (the complainant's foreman at the time of lay-off) as well had no complaints with respect to the quality of the complainant's work; he characterized the complainant as average and, even with respect to speed, did not suggest the complainant was the slowest in the crew.
The Board at this point must comment with respect to R. Pennoyer's testimony. R. Pennoyer area superintendent) stated that R. Metro had tried to lay-off or get rid of the complainant on at least one occasion before the lay-off in January 1991 but that R. Pennoyer had dissuaded him. This testimony is not corroborated by R. Metro. Indeed, in response to a question of R. Metro to the effect "if a carpenter on your crew was no good, would the response be to lay him off", R. Metro stated that he had "never been in that situation". The Board does not accept R. Pennoyer's version of events but that testimony, of itself, also raises suspicion with respect to the company's decision to lay-off the complainant.
The Board is not hereby suggesting that the respondent has a broad or flagrant anti-union animus or anti-union health and safety animus. There is evidence to suggest that the respondent was safety conscious. That evidence, however, is not determinative of the issue before the Board, namely, in this instance was the selection of the complainant for lay-off at least in part motivated by the complainant's health and safety activities and his status as a health and safety representative. The Board would also note that the evidence with respect to the company's health and safety record falls far short of establishing the proposition that the company was so safety conscious that it would never violate section 24(1) of the OHSA or that the company could be presumed not to have violated the OH5A in this instance.
It is not in dispute - indeed the respondent's evidence clearly establishes - that the complainant was a knowledgeable, conscientious health and safety representative who took his responsibilities seriously but went about those duties matter of factly. In his testimony, the complainant did not try to exaggerate his activities or the responses of the various company officials. The Board is also satisfied that there was some friction between R. Metro and the complainant over a period of time relating to the complainant's health and safety activities and the fact that those activities necessitated the complainant's absence from his job as a carpenter and impacted on the productivity of R. Metro's crew.
At the time of the selection of carpenters for lay-off then, the Board must be satisfied that the company's decision was solely based on the complainant's alleged poor work performance. The evidence of the lay-off decision-making process, however, is somewhat sketchy and not satisfactory. The complainant was an average carpenter, at the very least, and a conscientious health and safety representative. There had been some tension between R. Metro and the complainant with respect to the complainant's health and safety activities. R. Metro testified he was instructed to select some crew members for lay-off. He selected four, including the complainant. One of those retained, however, was not retained by R. Metro because R. Metro considered that carpenter particularly good. That individual had only recently joined R. Metro's crew. The import of R. Metro's testimony was that he followed the direction of the assistant superintendent, 5. Lopez to retain that carpenter (DaSilva). 5. Lopez did not testify and apparently has been transferred out of Ontario. Even apart for this, though, there was no detailed explanation of the criteria used for the decision to retain or release the crew members either at R. Metro's level or at the level where the time cards of those initially selected for lay-off were "placed on a table" for consideration by other foremen. The Board has simply the bald assertion that the complainant was selected because of his poor work performance. The Board need not repeat its earlier comments to the effect that the thrust of the testimony of witnesses called by the company (excluding R. Pennoyer whose testimony is rejected on this point) was that the complainant was not a poor carpenter or poorer than everyone else on the crew or even poorer than those who were retained following the January 9 lay-off. Beyond this as well, the fact remains that the complainant's status as health and safety representative was the subject of discussion at the "cards on the table" level. The company's witnesses stated that the question was asked as to whether the complainant had any special status or protection under the collective agreement and assurances were given that there was no such protection. With respect, that is a different question from the one before the Board as to whether the complainant's status and activities as health and safety representative played any part in the decision to lay-off the complainant rather than another employee. In short, the Board is not satisfied with the reasons proffered by the company for selecting the complainant for lay-off and accordingly finds a breach of Section 24(1) of the OHSA.
With respect to relief, the Board directs the reinstatement of the complainant as at the date of the lay-off with compensation for lost wages and benefits flowing from the decision of the company to lay-off the complainant on January 9,1991. The Board is cognizant of the fact that further lay-offs followed the January 9 date. At this point, the Board considers it sufficient to direct the parties to try and resolve the issue of compensation. If the parties cannot resolve that matter, the Board remains seized to deal with that issue and any other issues arising out of this decision.
The Board must briefly return to the "steward" issue. The Board does not regard it as necessary to conclusively determine at this juncture issues such as the date on which the complainant was appointed steward, the question of the interpretation of the collective agreement, the precise date on which the letter dated December 21, 1990 was mailed by the union or received by the company and whether the company had actual notice of the appointment of the complainant as steward prior to that date. It appears not in dispute that stewards are protected under the collective agreement from lay-off. Given that the Board has found a violation of the OH5A in the complainant's lay-off on January 9, 1991 and has directed his reinstatement as at that date, the Board considers that the parties should be able to resolve the compensation issue, but, if not, the Board may have to formally deal with those matters.
By way of relief, there has also been a request for a posting. Given the current situation at the job site with respect to the level of activity and the fact that the project will be "mothballed" for quite some time, the Board does not consider it appropriate to direct a posting. These comments, however, are made without the complainant's counsel's submissions on that point. The Board would afford complainant's counsel opportunity to address that issue. However, the Board thought it expeditious to give its thinking on the issue at this point. [Mr. McKee, counsel for the complainant, indicated that the request for a posting as part of the relief was withdrawn.]
For the foregoing reasons then, the Board finds a violation of Section 24(1) of the Occupational Health and Safety Act and directs the relief as noted.