[1993] OLRB Rep. July 680
0995-93-OH Chris Walker, Applicant v. Steep Rock Resources Inc., Responding Party v. Teamsters Local Union 91, Intervenor
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.
APPEARANCES: Jamie Wyllie, Keith Berry, Yvon Begin and Chris Walker for the applicant and the intervenor; Ray Werry for the responding party.
DECISION OF THE BOARD; July 22, 1993
This complaint to the Board under section 50 of the Occupational Health and Safety Act came on for hearing on July 20, 1993.
The responding employer moved that the Board not inquire into the complaint on the basis that the matter had been settled, and requested that the Board direct the parties to abide by that settlement.
There was no dispute with respect to the facts material to this motion and request.
Although nominally an intervenor, Teamsters Local Union 91 has actively represented the applicant throughout this proceeding. The union retained counsel to represent the applicant's interests in that respect. On July 8, 1993, at approximately 4:00 p.m., counsel for the applicant and the union agreed with counsel for the responding employer that the proceedings before the Board would be disposed of as follows:
(a) the applicant would be reinstated as an employee of the responding party on his next regular working day;
(b) the application would be withdrawn and the matter referred to arbitrator Douglas Stanley to be dealt with by him;
(c) the arbitrator would have jurisdiction to deal with all matters in dispute between the parties, including the applicant's allegations that he had been treated in a manner contrary to section 50(1) of the Occupational Health and Safety Act, and whether the suspension he received (measured from the date he was initially suspended to the date he returned to work) should be "sustained, reduced or eliminated".
Counsel also agreed to August 27, 1993 as the hearing date for the arbitration and communicated with arbitrator Stanley in that respect.
At approximately 10:00 p.m. on July 8, 1993, some six hours later, the applicant telephoned his counsel and advised him that he had changed him mind, and that he wanted to proceed with his application before this Board rather than on the basis of the agreement between the parties.
The responding employer did in fact reinstate the applicant and he has been working since July 13, 1993. However, this reinstatement was not pursuant to the agreement between the parties aforesaid but rather on the basis of the responding employer's unilateral decision to do so without prejudice to its or the applicant's positions with respect to this motion or otherwise.
The only reason the applicant changed his mind was that he decided he wanted the earlier hearing available before this Board, something which it was conceded he had considered when he agreed to the settlement agreement reached by counsel.
Section 50 of the Occupational Health and Safety Act provides that:
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.
(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 91 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.
(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), sections 104, 105, 108, 110 and 111 of the Labour Relations Act apply with all necessary modifications.
(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.
(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (1).
(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.
(8) Despite subsection (2), a person who is subject to a rule or code of discipline under the Police Services Act shall have his or her complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.
The Board clearly has the discretion not to inquire into a complaint under section 50 if it considers it appropriate not to do so. Upon considering the circumstances and representations of the parties in this case, the Board found it appropriate not to inquire into the applicant's complaint herein and so ruled, orally.
Section 50 of the Occupational Health and Safety Act gives a worker represented by a trade union who complains that an employer has contravened section 50(1) a choice. S/he can have the matter dealt with at arbitration under the applicable collective agreement, or by this Board. Initially, the applicant chose to come to this Board. Subsequently, all parties, including the applicant, agreed to have the matter dealt with at arbitration. In the Board's view, it is neither necessary nor helpful to inquire into the motivation of any party for entering into this agreement. Settlement agreements are entered into for all sorts of reasons, some of which may be understandable or significant only from the perspectives of the parties themselves. Further, this is not a case in which the applicant was tricked or improperly coerced into the settlement agreement. He had before him and considered all the necessary relevant information, and had the benefit of the advice of both his trade union and counsel. Nor is there any prejudice to the applicant if he is held to the settlement he agreed to.
Finally, the responding employer's motion raised significant labour relations and public policy considerations. As a matter of both labour relations and public policy, parties should be held to agreements they have freely enter into. To permit a worker who specifically agrees to a settlement in circumstances like those herein to resile from the settlement agreement would tend to undermine the union's ability to represent the employees in the bargaining unit in their employment relations with the employer, and would have a negative affect on the collective bargaining relationship. It would also tend to undermine the integrity and utility of the collective agreement settlement process and of the settlement processes of this Board.
In short, there was no good reason to permit the applicant to resile from his agreement, and some good reasons not to permit him to do so.
In the result, the Board.will not inquire further into this complaint. The Board does find it appropriate to make the direction requested by the responding employer (which was unopposed if the Board decided as it did). The parties are therefor directed to proceed to arbitration with respect to the matters which have been placed in issue between them on the terms and conditions agreed to by them (see paragraph 4, above) subject only to a mutually satisfactory date for hearing being agreed to if August 27, 1993 is no longer available to any party or the arbitrator.