Roger Kennedy v. Whitler Industries Limited, 1992 CanLII 6365

[1992] OLRB Rep. August 977

1812-91-OH Roger Kennedy, Applicant V. Whitler Industries Limited, Respondent

BEFORE: Brain Herlich, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.

DECISION OF THE BOARD; August 7, 1992

1. This is a complaint alleging that the respondent (also referred to as the "employer" or the "company") violated section 50(1) (which formerly, and at the time this complaint was filed, was section 24(1)) of the Occupational Health and Safety Act ("OHSA").

2. Hearing in this matter commenced on October 8, 1991 and although the parties spent a considerable amount of time on that day in unsuccessful settlement discussions, the Board did hear the evidence of Leo Koller, the respondent's production manager during the relevant period. The respondent indicated it intended to call some seven witnesses; the complainant was of the view that it would call several witnesses as well. Consequently, the parties agreed to four continuation dates commencing on Monday January 6, 1992. Formal notices of these continuation dates were for­warded to the parties in November of 1991.

3. At approximately 4:00 p.m. on Friday January 3,1992, Mr. Rod Parker, president of the respondent company, forwarded the following communication to the Registrar by facsimile transmission:

As confirmed by telephone we must request an adjournment of the above scheduled hearing January 6, 7,20, 27, 1992.

We suggest that the hearings begin on the 20th since these dates are already reserved,

The company is not able to provide the time and expense for the witnesses to appear on the 6th or 7th

[Emphasis in the original]

4. Mr. Parker appeared before the Board on behalf of the respondent at the commence­ment of the hearing on the following Monday. He did not, however, produce any of the witnesses earlier adverted to. He advised us that he was still seeking an adjournment, that he was only appearing at that time out of respect for the Board and he encouraged us to rule quickly on his adjournment request since, regardless of what our ruling might be, he was leaving at 10:00 a.m. He sought the adjournment because as the person responsible for running the business his judgement was that he could not afford to bring witnesses away from work to the hearing and because he had several important business meetings to attend to. He suggested the matter be put over to the Janu­ary 20 and 27 hearing dates already scheduled but was unable to offer any assurance that he would be in any better position to appear before the Board on those dates.

5. It is trite to suggest that if inconvenience to a respondent were an acceptable basis upon which to (perhaps indefinitely) delay hearings before the Board, the remedial effect of the OHSA (and, indeed, other legislation the Board administers) would be dramatically undermined. Neither were we impressed with what was essentially an ultimatum presented to the Board, albeit cloaked in terms of the respondent's "respect" for the Board. We denied the respondent's adjournment request, Mr. Parker then departed and the hearing proceeded in the absence of the respondent. We heard the uncontradicted evidence of the complainant and ruled orally that the respondent had violated section 50(1) of the OHSA. We now provide our reasons for that ruling as well as our determination with respect to remedy.

6. In coming to its findings of fact the Board has carefully considered all of the evidence before it and taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in 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. More particularly, we note that Mr. Koller, in giving his evidence before the Board, was evasive, vague and non-responsive. He often seemed to be tai­loring his responses to minimize any culpability on the part of the respondent. On the other hand, in view of the events already recounted, the evidence of the complainant was uncontradicted and was also internally consistent. We have therefore been unable to place much weight on the evi­dence of Mr. Koller. We accept the complainant's evidence including in those circumstances where it conflicts with that of Mr. Koller.

7. The complainant, Roger Kennedy, commenced his employment with the respondent in October of 1990. From then until the events giving rise to the present proceedings he spent the vast majority of his work time as a cabinet maker. The termination, in February of 1991, of a fellow employee, Wade Proctor, resulted in a complaint against the company alleging violation of the OHSA (Board File No. 3248-90-OH). Hearing in that matter was held (before a different panel of the Board) on April 23, 1991. Mr. Kennedy appeared under summons and testified on behalf of Mr. Proctor at that hearing.

8. On the day following that hearing the complainant returned to work and avoided ques­tions about the hearing from fellow employees who were all aware of his having testified despite the fact that the complainant had not advised them. Later in the day Mr. Koller called a meeting of all of the employer's factory personnel. He advised them that because of the "court case" and because of the "lies" told at the hearing the company would be forced to enforce health and safety regulations more strongly. Employees were advised that non-compliance, e.g. those not wearing safety equipment, would be subject to discharge. The complainant was the only one of the three witnesses who testified on behalf of Wade Proctor who was present at the meeting and we are satis­fied that the innuendo and denunciation in Mr. Koller's remarks were deliberately directed at the complainant in a public fashion in front of his fellow employees.

9. By decision dated May 3, 1991, the panel of the Board seized with Mr. Proctor's com­plaint against the company determined that the termination was contrary to the OHSA and directed that Mr. Proctor be reinstated and compensated. Upon receiving a copy of the Board's decision in that case, another meeting of employees was convened, this time by Mr. Parker. He was extremely upset at having lost the case and denounced all those who had testified on behalf of Mr. Proctor as liars. A number of other less than complimentary statements were made, some while Mr. Parker stared quite deliberately at the complainant. Again, we are satisfied that this was done, at least in part, to publicly vilify the complainant for his role in the Proctor hearing.

10. A number of significant events followed the release of the Board's decision in the Proc­tor complaint.

11. The complainant's "reassignment" was virtually contemporaneous with the release of the Proctor decision. Previously the complaint spent the vast majority of his time at working as a cabinet maker. Subsequent to the Proctor award he was reassigned and consequently spent the majority of his time working on a machine called the edgebander. No one had ever previously been assigned to work full-time or primarily on this machine. The work on this machine was previ­ously distributed amongst a number of different employees (or, on occasions, management person­nel) presumably as an adjunct to their regular duties. The complainant viewed this reassignment as a demotion since the skills involved in performing this work were marginal as compared to those involved in his previous assignment. Not only did the complainant see his former duties reassigned to other employees, but not long after his reassignment, he discovered that a new employee was being trained to perform his former duties.

12. Although the complainant had no record of discipline prior to May, 1991, a number of events occurred in that month including disputes regarding the proper, safe and effective operation of the edgebander machine. The complainant also saw fifteen minutes of his pay docked because he left for a pre-arranged medical appointment after break time. It is not necessary for us to review these incidents in any detail. It is sufficient for our purposes to observe that, to the extent these are examples of disciplinary measures, however minor, imposed by the employer, we were not pro­vided with any evidence credibly supporting or explaining the basis for their imposition.

13. Finally, for the purposes of the chronology of relevant events, the complainant, while

off work on a leave approved by his physician, received the following correspondence dated July

29, 1991 from Mr. Parker:

We have recently assessed our employee needs and regret to inform you that your job has been re-assigned.

Therefore, should you wish to return to work at Whitler, we will keep your application, and employment record, but the position is no longer available.

Your record of earnings form is enclosed.

14. The Employment and Immigration Canada Record of Employment form prepared by the employer and furnished to the complainant indicates "illness or injury" as the reason for issu­ing the form and, rather than indicating the expected date of recall as either fixed or unknown, indicates that the complainant will not be returning to work. Not long after these events the com­plainant noticed that the employer had placed advertisements in a local newspaper seeking employees to do work similar to that which he had previously performed.

15. Section 50 of the Occupational Health and Safety Act provides as follows:

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

(a) dismiss or threaten to dismiss a worker;

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

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(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.

16. Although reinstatement is the presumptive remedy in the case of an unlawful discharge under the OHSA, reinstatement was not sought in this case.

17. Having regard to the largely uncontradicted evidence before us, the reverse onus provi­sion of section 50(5), the absence of any credible explanation from the respondent, and the timing of the events in question, we are satisfied that the employer actions just recounted and, in particu­lar, the termination of the complainant were taken, at least in part, because the complainant gave evidence in a proceeding in respect of the enforcement of the OHSA and are consequently in vio­lation of section 50(1) of that Act.

18. Having regard to the entirely uncontradicted evidence and submissions of the complain­ant, we are satisfied that the damages which flow from the respondent's violation of the Act amount to six thousand nine hundred and forty-six dollars and seventy-five cents ($6,946.75). The respondent is hereby directed to pay this amount to the complainant forthwith. In addition, the respondent is directed to post a copy of this decision in a prominent location in the workplace where it is likely to come to the attention of its employees for a period of sixty days.

CONCURRING OPINION OF BOARD MEMBER JUDITH A. RUNDLE; August 7, 1992

1. While I concur with the Board's ultimate disposal of this case I wish to comment specifi­cally on paragraphs 4 and 5 of the decision with a view to providing a different perspective on the respondent's actions.

2. Mr. Parker did appear on the hearing date without any of the witnesses he had earlier indicated he would be calling. His reasoning for not bringing his witnesses - all of whom were employed at the respondent company, was quite simple. In his opinion as the person responsible for running the company and ensuring its continued existence, in difficult financial times, he made a business decision that it was in the best interests of the company and its employees to remain at work rather than shut down the plant to attend our hearing. We were led to believe, (I have no reason to doubt) that the respondent's financial situation and indeed its continued operation was precarious and such a shut down would have major implications for the respondent and its employ­ees. Mr. Parker informed the Board that he would not attend beyond 10:00 a.m. regardless of our ruling on his adjournment request. The "important business meetings" Mr. Parker had to attend to were, a meeting with his bonding company followed by a meeting with his bank. Both meetings were to ensure continued financial support for his company. I also agreed with the majority that Mr. Parker could not ensure the Board that he would be able to attend any of the hearing dates already scheduled - the financial situation of his company was such that he did not know whether he would be in a different financial situation or whether his position would be the same on those dates.

3. I agree that inconvenience to a party is not an acceptable reason to delay any hearing before the Board. The decision not to grant the adjournment was unanimous, based for my part, on the Board's jurisprudence. I did not view Mr. Parker's adjournment request as "an ultimatum cloaked in terms of "respect" for the Board." Mr. Parker was faced with several decisions. First -should he keep his employees at work rather than shut down the operation to have them appear as witnesses. Secondly, should he attend the meetings with his binding company and the bank to ensure that his employees would still continue to work. Thirdly should he attend at the Board and pursue his adjournment request. I am not sure I disagree with the decision Mr. Parker made. After all the complainant in our case was employed with another company, faced with that fact Mr. Par­ker decided to try and protect the jobs of his remaining employees. Whether he was successful or not is something this Board is not aware of.

4. Finally Mr. Parker's dilemma and the choices he had to make are regretfully becoming the norm in this province as more companies are facing serious financial setbacks. This is an unfor­tunate reality that this Board will be forced to take into account in its deliberations in the future.