Ian Walker v. Filtran Microcircuits Ltd., 1991 CanLII 6179

[1991] OLRB Rep. June 752

2821-90-OH Ian Walker, Complainant v. Filtran Microcircuits Ltd., Respondent

BEFORE: Brain Herlich, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.

APPEARANCES: Ian Walker on his own behalf; George Rontiris and Craig Sutton for the respon­dent.

DECISION OF THE BOARD; June 24, 1991

1. This is a complaint alleging that the respondent (also referred to as the "employer") has violated section 24(1) of the Occupational Health and Safety Act (the "Act") in terminating the complainant's employment.

2. This matter first came on for hearing on March 13, 1991 before a different panel of the Board. At that time the complainant sought an adjournment in order to retain counsel and mar­shall his evidence. The employer consented to the request which was consequently granted and new hearing dates of May 1 and 2, 1991 were agreed to at that time. The complainant was also directed to provide particulars of his complaint. These and other details of the first hearing day in this matter can be found in the Board's decision dated March 18, 1991.

3. When the matter came back on for hearing before the present panel on May 1, 1991 the complainant was again seeking an adjournment. He explained that he wished to have the Ministry of Labour Occupational Health and Safety inspector involved in this matter testify in these pro­ceedings and had, so far, been unable to make the necessary arrangements. He advised that the inspector in question had referred him to his supervisor and that the complainant had been unable to secure a reply from the supervisor regarding whether or not the inspector could be made avail­able to testify. The complainant was unable to tell us when, or indeed whether, the inspector would be available to testify. The employer opposed the adjournment request.

4. The Board's approach to adjournment requests has been set out in Labour Relations Bureau of Ontario General Contractors Association, [1979] OLRB Rep. Nov. 1036, at paragraph 8:

……The usual practice of the Board is to grant adjournments only on consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated at page 433:

The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal 70 CLLC 14,0240) wherein the Board stated:

“…..the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seri­ously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness..."' [see also Re Flamboro Downs Holdings Ltd. and Teamsters Local 879(1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 at 404 et seq.]

5. In the present case, the first day of hearing was adjourned at the complainant's request to retain counsel. When the matter resumed the complainant advised that he would be represent­ing himself although he had received advice from counsel. In the context of the latest adjournment request the Board drew the complainant's attention to sections 34(1)(a) and 34(2) of the Act which provide:

34.-(l) Except for the purposes of this Act and the regulations or as required by law,

(a) an inspector, a person accompanying an inspector or a person who, at the request of an inspector, makes an examination, test or inquiry, shall not publish, disclose or communicate to any person any information, material, statement, report or result of any examination, test or inquiry acquired, furnished, obtained, made or received under the powers conferred under this Act or the regulations;

(2) An inspector or a person who, at the request of an inspector, accompanies an inspector, or a person who makes an examination, test, inquiry or takes samples at the request of an inspector, is not a compellable witness in a civil suit or any proceeding, except an inquest under the Coroners Act, respecting any information, material, statement or test acquired, furnished, obtained, made or received under this Act or the regulations.

7. We note as well that this request was made less than 48 hours before the resumption of the hearing and was not even mentioned as a possible difficulty at the first day of hearing. This not­withstanding the complainant's assertion that his efforts to secure the evidence in question com­menced well before the first day of hearing. In any event, while there may be circumstances where the legitimate and unforeseeable unavailability of a witness leads to the granting of an adjourn­ment request, this did not seem the appropriate course of action in the present case. Certainly in the absence of any positive indication of when (or whether) the evidence sought would be available and in view the statutory provisions already referred to, we saw absolutely no basis for granting the adjournment and once again delaying the final disposition of this matter. For these reasons we denied the complainant's request at the hearing and proceeded to hear the merits of the case.

8. Filtran Microcircuits Inc. is a manufacturer of high resolution microwave circuitry for the communications industry. The complainant was hired as production supervisor on September 5, 1989. At that time and during his relatively brief tenure he was responsible for supervising the schedules and work of approximately 9 employees. Given the nature of the enterprise, the respon­dent's workforce is fairly highly skilled and includes engineers, technologists and technicians. The complainant, however, has no formal technical training but was hired for his managerial skills. There is little question that in the seven months leading up to his termination the complainant encountered serious difficulties (whether of his own making or not) in the workplace. Whatever else may be said about the complainant's approach to his position, there is little doubt that he was a prolific author of memoranda. Over twenty of these, some quite lengthy and all written during the course of his employment, were filed as exhibits in these proceedings. These documents cover a wide variety of topics and include such titles as "methods of supervision" and "my strategies". A general review of these indicate both the degree of seriousness the complainant attached to his position and the level of dissatisfaction he was experiencing in the job. Of all these documents only two could arguably be said to raise health and safety issues.

9. The first memorandum, dated October 18, 1989 involved the complainant's introduction of a "maintenance log sheet" in respect of one of the respondent's machines. We heard little fur­ther evidence in respect of this memo or whether this issue was the subject of any further discus­sion or controversy between the parties. The second document is an undated memorandum in which the complainant recommends the purchase of certain safety equipment such as respirators, a stretcher kit, an eye wash station, and a first aid kit. There was considerable dispute between the parties as to the origin of this document. The complainant testified that he prepared it entirely on his own initiative. Mr. Sutton, the employer's general manager, asserted that the complainant had been assigned the responsibility to prepare a list of safety items for purchase. However that conflict is resolved (and we do not find it necessary to do so for our purposes), we heard no evidence of the results of the memo i.e. whether the equipment was purchased or whether the issue continued to be the subject of discussions or controversy between the parties. These two memos are the only documentary evidence before the Board of any health and safety issues raised by the complainant or discussed between the parties during his tenure.

10. Mr. Sutton and Dr. K. Ramchandran, the complainant's immediate supervisor, pre­pared an employee performance and development appraisal on April 15, 1990 and presented it to and reviewed it with Mr. Walker at a meeting on Wednesday April 18, 1990. Although the appraisal form does contemplate the possibility of a recommendation for termination, no such rec­ommendation was made. The appraisal was, on the whole, less than favourable with most items rated as "needs improvement". The complainant was obviously unhappy with the appraisal and prepared a four page written reply which he delivered the following day. It is not necessary for us to review the contents of this rejoinder except to note that no health and safety issues are raised or adverted to in it. Dr. Ramchandran and Mr. Sutton reviewed the complainant's reply and decided that a further meeting to discuss the matter was in order.

11. That meeting took place on Tuesday, April 24, 1990 and was attended by Mr. Sutton, Dr. Ramchandran and the complainant. According to Mr. Sutton the complainant was advised that he would be required to perform the tasks assigned to him. Mr. Walker replied that he would refuse to do so unless these tasks were to be done exactly the way he (the complainant) wanted them done. This reply is consistent with the evidence we heard from both parties regarding ongo­ing conflicts about management styles and was a reply Mr. Sutton related to the complainant's drive to introduce certain computer systems which the employer had already rejected as too expen­sive. Mr. Walker also indicated that if the employer put procedures into effect without his partici­pation or approval he would not work with those systems. At that point Mr. Sutton and Dr. Ram­chandran retired briefly to discuss the matter and returned to advise Mr. Walker that he would have to follow the employer's directions and that they could not retain an employee who refused to do so. Mr. Walker responded by saying that he would not quit and would have to be fired. At that point the complainant was given oral notice of his termination.

12. Mr. Walker's version of what transpired at the meeting does not substantially conflict with Mr. Sutton's version as just recounted. According to Mr. Walker, however, he did raise health and safety issues including matters related to his own personal health at the meeting. Fur­thermore, Mr. Walker's view was that he had merely been threatened with termination rather than having received actual notice of termination at the meeting. To the extent that the evidence con­flicts, we prefer that of Mr. Sutton on these points. Given the complainant's demonstrated practice of committing his thoughts to writing in the form of memos as reflected in his four page reply to the appraisal, it seems unlikely to us that any significant issue in his mind would not have been reflected in his written reply. We will return to the question of threatened rather than actual termi­nation later in the decision.

13. After the meeting, which concluded at approximately 4 p.m., Mr. Sutton prepared the following memorandum:

April 24, 1990

To: Ian Walker

From: Craig Sutton

Subject: Notice of Termination

Please be advised that effective today your services with our company are being terminated.

As discussed, we are prepared to offer the remainder of this week and three additional weeks so that you may find alternate employment. Should you find employment earlier, then of course you may leave at your discretion. We wish you good luck in your job search and in your future career.

Yours truly,

Craig Sutton

Filtran Microcircuits Inc.

When completed, this memo was placed on Mr. Walker's desk. However, since the complainant had already left for the day he did not receive it until the following morning.

14. Mr. Walker had left work early that day and went to visit his physician, Dr. Rambert who completed a Workers' Compensation Board form titled Doctor's first Report. That report is extremely terse and indicates the "patient's history of injury" as "problem of stress at work -health and safety related" and describes the "injury" as "started working Sept 1989 - felt condi­tions unagreeable [sic] and could not cope on site". The diagnosis is indicated as "acute job related stress [illegible word]" and the form appears to suggest that the complainant will require 6-8 weeks off the job. We heard no evidence as to whether a WCB claim was allowed, rejected or even filed.

15. On that same day Mr. Walker also telephoned the Ministry of Labour and asked that a health and safety inspector be dispatched to inspect the workplace.

16. On the following day Mr. Walker was at the workplace only long enough to receive his written letter of termination and to provide the employer with a copy of the WCB form prepared by Dr. Rambert. Later in the day the workplace was inspected by an inspector from the Industrial Health and Safety Branch of the Occupational Health and Safety Division of the Ministry of Labour. Although 8 orders were issued to the employer subsequent to and flowing from the inspection, the evidence was uncontradicted that these were relatively minor matters and, in any event, further evidence was filed indicating that all of the orders were complied with within the time frames established by the inspector.

17. The complainant alleges his discharge was in contravention of section 24(1) of the Act which provides:

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 or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

18. In argument the complainant asserted that he had acted in compliance with the Act or sought its enforcement by refusing to work and by arranging for the Ministry inspection of the plant.

19. The work refusal essentially consists of the complainant having filed a copy of Dr. Rambert's report with the employer. Since the report apparently indicates the complainant should be off work for a period of time as a result of job related stress, Mr. Walker argues it is tantamount to a work refusal motivated by concerns related to occupational health and safety. Even assuming the doubtful proposition that these events can be characterized as a work refusal as contemplated by section 23(3) of the Act, we are not satisfied that this advances Mr. Walker's claim of a violation of section 24(1). The "refusal" in question clearly took place after the dismissal and it is therefore impossible to conclude that the dismissal occurred because of the "refusal". Mr. Walker testified that, in his view, neither the oral nor written notices of termination were actual notices of termina­tion but rather were merely threats of termination. The evidence simply does not support such an equivocal characterization. However, even if we were to accept such a characterization in relation to the oral notice, the written document, cited earlier in the decision is extremely straightforward. The evidence was not entirely clear regarding the sequence of events related to Mr. Walker's receipt of the written notice of termination and his delivery of Dr. Rambert's report to the employer. These two events occurred either simultaneously or within minutes of each other. Even assuming that Mr. Walker did not actually receive the written notice of termination until a few minutes after his "refusal", we are nonetheless satisfied that his "refusal" took place after the employer had decided on his dismissal. Thus, we are unable to conclude that Mr. Walker was dis­missed because of his "refusal".

20. We have less difficulty accepting Mr. Walker's claim that he was acting in compliance with the Act or seeking its enforcement in arranging for a safety inspection. Whatever other or fur­ther motives may have been at play, there is no doubt that Mr. Walker invoked procedures specifi­cally contemplated and administered under the Act. However, Mr. Walker faces a similar diffi­culty in the second branch of his argument i.e. that he was dismissed because he invoked those procedures. Again, the evidence was not entirely clear. Mr. Walker testified that he called the Ministry on Tuesday April 24, the same day he received his oral notice of termination. Even assuming that he called the Ministry prior to receiving his notice, we are satisfied, on the balance of the evidence, that the employer was entirely unaware that Mr. Walker had contacted the Minis­try at least until the inspector's arrival about an hour after Mr. Walker's final departure from the plant the following day. Thus we are equally unable to conclude that Mr. Walker was dismissed because he invoked the procedures of the Act.

21. Neither is this (nor was it seriously argued by the complainant to be) a case where we might be tempted to conclude that the complainant's history of agitating for compliance with the Act or otherwise advancing health and safety matters played any part in the employer's decision. In this context we observe once again that of all the many memos filed in evidence only two remotely touched on safety issues. There was no other evidence to allow us to conclude, even by inference, that these two memos raised issues of particular or ongoing significance between the parties or that they, in any other way, figured in the employer's ultimate decision

22. The real reasons for Mr. Walker's discharge were articulated by him quite cogently in both his evidence and his argument. The complainant clearly felt besieged by what could best be described as a clash of management styles. Mr. Walker had some very particular views on ways to manage the enterprise including certain technological innovations. His views were not accepted and, according to him, often not even entertained by senior management. This undoubtedly resulted in a less than harmonious working environment for all concerned. Furthermore, in terms of the debate over management styles, we are prepared to assume (without finding) that all the equities fall with the complainant. We fail to see, however, how such a clash over management style in the context of the present case can support the argument that section 24(1) of the Act has been violated.

23. Accordingly, we find that the complainant's dismissal was not a violation of section 24(1) of the Act.

24. In argument the respondent addressed the applicability to the instant matter of section 24(7) of the Act which provides:

24.-(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.

25. The complainant neither addressed, relied upon nor sought any relief in respect of sec­tion 24(7). Consequently, it is unnecessary for us to deal with this issue in any great detail. We would merely observe that on the basis of the tests outlined in National Plastic Profiles Inc., [1990] OLRB Rep. Oct. 1078 and in Bilt-Rite Upholstering Co. Ltd., [1990] OLRB Rep. July 755, we would have been unlikely to find .the required nexus to health and safety which the Board identi­fied as a prerequisite to any consideration of the exercise of discretion under section 24(7). Fur­thermore, it is also unlikely that any consideration of the Board's more recent review of section 24(7) in H. H. Robertson Inc., [1991] OLRB Rep. Apr. 492, which deals with a complainant in an organized setting and otherwise protected by a collective agreement would have provided any fur­ther support in the present case for considering the exercise of our discretion under section 24(7).

26. The complaint is dismissed.