[1992] OLRB Rep. January 87
2662-90-OH Ronald Gerald Tisler, Complainant v. The Township of Matchedash Council, Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.
APPEARANCES: Ronald Gerald Tisler appearing on his own behalf; Milton Zwicker for the
respondent.
DECISION OF THE BOARD; January 27, 1992
- We have received a letter from counsel for the respondent requesting that the Board provide "a written copy of the Board's reasons for its decision dated December 18, 1991". The following were the oral reasons rendered at the conclusion of the hearing into this matter on December 18, 1991:
This complaint has been filed pursuant to section 24 of the Occupational Health and Safety Act. The complainant Mr. Tisler was, until September 28, 1990 the deputy fire chief of the Township of Matchedash Volunteer Fire Department. This is a volunteer position for which Mr. Tisler received what can only be characterized as token remuneration. In 1989 the total amount of
money received by Mr. Tisler for performing voluntary services for the fire department amounted to less than $250.00.
Mr. Tisler alleges that he was removed from his position as deputy fire chief because he acted in compliance with the Occupational Health and Safety Act ("the Act") or the Regulations to the Act and has sought the enforcement of the Act and its regulations.
The respondent Township of Matchedash denies the allegations and asserts that Mr. Tisler was removed from his volunteer position because he was incompetent, insubordinate and undermined the authority of the system.
We heard the evidence of six witnesses over the course of eleven days of hearing. In addition, certain facts and evidence were agreed upon by the parties. We also had voluminous documentary material tendered as evidence. That evidence spanned a period in excess of eight years. We note at the outset that at the end of the day much of the evidence was irrelevant to the central issue in dispute, namely the cause or motive underlying Mr. Tisler's removal from office.
In our view the calling of, or responding to this evidence had more to do with what we will loosely term as the "politics" of the issues and the personalities of the key players than any real desire to focus on the substantive allegation that in the dismissal of Mr. Tisler the Township council was motivated by anti-safety animus.
In making our findings of fact we have considered the usual factors including the consistency of the witnesses' evidence, their demeanour while testifying, the ability of the witnesses to resist the influence of self-interest to modify his or her recollection of past events and what appears to be reasonably probable when all the evidence is assessed and weighed. Having regard to the evidence and those factors we have made the following conclusions and determinations.
We note at the outset that for purposes of our decision herein we will assume without finding that Mr. Tisler's position as deputy fire chief of the volunteer fire department is covered by the Act. We will assume without finding that the volunteer fire fighters fall within the definition of "worker" and have full recourse to all the rights and obligations extended to workers under the Act.
We note further that in our view section 99 of the Municipal Act has no application to these proceedings.
From an evidentiary point of view we find that over the years there has been an appalling lack of co-operation and communication between the council and the volunteer fire department. Set in their own ways members of both the council and the fire department blame the other for this state of affairs.
In our view council has not always reacted promptly or properly and in a more sensitive manner to issues of health and safety raised by the fire department volunteers. Members of council must realize and recognize that the Act imposes joint and mutual obligations upon employers and employees alike.
It is the responsibility and obligation of the fire fighters to bring forth to council matters relating to health and safety. Raising such health and safety concerns should not be viewed as a challenge to council's authority. Neither is it always an appropriate response to say that as elected representatives the council is politically responsible for allocating its very limited funds in a manner they deem best or as they see fit.
On the other hand Mr. Tisler's characterization that council is unconcerned about matters of safety is incorrect and not borne out by the evidence. We do not accept Mr. Tisler's characterization of council's conduct. Rather we find that Mr. Tisler's perception and judgement in matters concerning his relationship with council are clouded by his conviction that only he knows the applicable legislation, the obligations and liabilities of all the parties, and consequently that only he knows the appropriate way of dealing with health and safety issues. Having focused his mind upon health and safety, and having decided upon the righteousness of his cause Mr. Tisler has proceeded in a manner which excludes any other considerations, other alternatives or other solutions. In this lies the crux of the issue before us.
We find that Mr. Tisler is a dedicated volunteer fire fighter who honestly and truly desired to bring about changes which in his view would strengthen the Matchedash volunteer fire department and ultimately thereby provide better fire fighter services and fire protection to the residents of the Township.
We further find that Mr. Tisler has tried to do his best as a volunteer deputy fire chief. On his own he took various courses at the fire college to enable him to perform his duties and responsibilities to the best of his skill and ability. He also sought in various ways to become more familiar with all relevant legislation including the Occupational Health and Safety Act.
Notwithstanding these extraordinary efforts, (extraordinary particularly when the volunteer nature of the position is considered) we have concluded that Mr. Tisler was not well suited to the position of deputy fire chief of the volunteer fire department at the Township of Matchedash. We have arrived at this conclusion because although Mr. Tisler is knowledgeable about a vast array of matters which impact upon the position of deputy fire chief, Mr. Tisler is also narrow minded, argumentative, and confrontational. It was this attitude which caused his dismissal.
Having regard to the entirety of the evidence we find that Mr. Tisler was not dismissed from his position because he acted in compliance with the Act or Regulations, or sought the enforcement of the Act or Regulations.
Reeve Gillies in words far less complimentary referred to Mr. Tisler as a troublemaker. Council viewed Mr. Tisler's conduct throughout as a mere desire to aggravate or goad. It was their perception that Mr. Tisler was the root of the problems between council and the fire department. In their view if Mr. Tisler was removed from his position the relationship, co-operation and communication between council and the fire department would improve. We need not necessarily determine the merit of that view point. There is no doubt that it was a genuinely held view point. For our purposes it is sufficient to note that this was the underlying motive for Mr. Tisler's dismissal.
Quite simply council seized upon the first available, somewhat legitimate opportunity offered by Mr. Tisler, that of "undermining the system" to rid itself of a burden. In so doing, council was not at all motivated by anti-safety animus. They did not seek to dismiss Mr. Tisler because he raised safety concerns or safety issues. Rather they dismissed him because in their view he was a confrontational, disruptive volunteer whose attitude was a liability not an asset to the relationship between council and the fire department.
In the end we find that there was no breach of section 24(1) of the Act and we dismiss the complaint.
- Although not set out in our oral reasons given at the conclusion of the hearing, the Board did not consider it appropriate to apply the discretionary provisions found in section 24(7) to the facts and circumstances of this case.