Mark Desipio v. Precision Engineering Company division of PECO Tool and Die Ltd., 1994 CanLII 9790

[1994] OLRB Rep. May 596

4305-93-OH Mark Desipio, Applicant v. Precision Engineering Company division of PECO Tool and Die Ltd., Responding Party

BEFORE: Pamela Chapman, Vice-Chair, and Board Members D. G. Wozniak and H. Peacock.

APPEARANCES: Mark Desipio, applicant; Neil Sommer and Margaret Dixon for the responding party.

DECISION OF THE BOARD; May 9, 1994

1. This is an application under section 50 of the Occupational Health and Safety Act by Mark Desipio ("the applicant"), formerly an employee of the responding party Precision Engi­neering Co. ("the company"). He alleges that he was discharged from the employ of the company as a reprisal for having made certain complaints about the availability of gloves at his workplace, and/or because he had developed dermatitis as a result of performing his work without gloves.

THE FACTS

2. The applicant was hired to work as a spot welder at the company on May 10, 1993, along with several other new employees hired through the "Jobs Ontario" programme. The com­pany makes auto parts out of steel, and these employees were hired to work on a new specialty product welding together very small stampings into somewhat larger, but still quite small, compo­nents. The applicant, like the other employees, was hired into a three month probationary period.

3. During the first two months of the applicant's employment he was engaged in familiari­zation and then training on the various welding machines and the components to be assembled. After completion of his training he was assigned to complete spot welds on several different com­ponents on various welding machines, as well as to "rework" faulty parts. Assembly of some of the components involves several welders each welding a different piece, while other parts are com­pleted by one employee working alone.

4. The components assembled by the welders come off a press where they are stamped out of rolled steel. The evidence disclos

ed that the rolls of steel are coated in a light machine oil when they arrive at the company, in order to prevent corrosion. During the stamping process, the steel is then sprayed with a mixture of water and an oil-like substance called Tuf Draw 1919 ("Tuf Draw"), in a ratio of approximately 15 or 20 to 1, depending on the nature of the component. After stamping, the components are stacked in bins for some time before being welded by the employees working on assembly.

5. There was some dispute in the evidence as to how much Tuf Draw and/or machine oil remains on the parts when they are handled by the welders. The company produced several parts for examination by the panel, including assembled components and raw parts before welding. Edmund Sobon, the welding operations supervisor at the company, testified that he had collected these parts on the morning of the hearing, and that he took them directly from the assembly line and the press respectively. He and Vishnu Ramnarine, the process engineer, also testified that the amount of residue on these parts was typical of the amount to be found generally on similar parts at the respective stages of production at which they were removed from the plant. On examination, there was very little oily residue on the parts the panel handled - enough to adhere to the skin but not enough to drip off the parts - with slightly more on the raw parts than on the welded parts.

6. The applicant, however, testified that there was normally much more oil-like residue on the parts which he handled as part of his job duties than on the parts which were provided to the panel. We are inclined to prefer the evidence of the company's witnesses on this point, particularly as it is corroborated by the report of a health and safety inspector from the Ministry of Labour who inspected the workplace on October 12, 1993 as a result of an anonymous complaint about employ­ees getting a skin rash from oil on the parts, made after the applicant was terminated. In this report, which was entered as an exhibit, the inspector found that "there was very little amount of oil on the parts".

7. It was not disputed, however, that repeated handling of the parts during the assembly process does lead to a build-up of the Tuf Draw and water mixture on employees' hands. As a result, and also to protect employees' hands from sharp metal edges and filings, the company stocks certain gloves which are made available for employees' use. Four different kinds of gloves were entered into evidence: plain cotton gloves, stretchy and therefore more form-fitting cotton gloves, cotton gloves with suede palms, and rubberized cotton gloves. The employees are not required to wear gloves but can do so at their option.

8. The company's witnesses testified that each type of glove is readily available to employ­ees and that there is no restriction on the number or type of gloves used by an employee. Stocks of the gloves are kept in the shipping office, and some pairs are also kept in the work areas. While the applicant did not directly dispute this evidence as to availability, he did suggest that only the plain cotton gloves, and some old cracked pairs of the rubberized gloves, were in plain view in his work area

9. When he began work with the company, the applicant wore either plain cotton gloves, the same gloves with the fingers cut off, or no gloves at all, while performing his duties. He testi­fied that he chose these options as he could not manipulate the small parts wearing more bulky gloves and the weather was quite hot. On cross-examination, he agreed that he liked the feeling of having the residue coating his hands as it was cooler and more comfortable, and would thus wear no gloves or let the residue soak the cotton gloves through repeated wearings. He added, however, that he did not know at that time that the Tuf Draw would give him a rash on his hands. There was no dispute that repeated wearings of the same cotton gloves would eventually lead to saturation of the gloves with the Tuf Draw and water mixture, although the company's witnesses testified that this would take about a week and the applicant asserted that it would happen much more quickly. The applicant did try using the suede gloves at some point, and found that while they were more resistant they too were eventually saturated.

10. On July 26, 1993, before going in to work at 7:00 a.m., the applicant noticed a rash on both of his hands, which he described as large red bumps. When the rash continued to spread, he complained to management at the company and was excused from his duties at approximately 9:30 a.m. to see a doctor at a walk-in occupational health and safety clinic. The rash was diagnosed as dermatitis, and the applicant was told that it was caused by a chemical reaction. The report pro­vided by the doctor recommended that he remain off work for seven days and advised that he should wear impermeable gloves in the future. The applicant received Workers' Compensation benefits while he was off work.

11. There was some dispute as to how many supervisors the applicant spoke to about his condition before leaving the workplace that day, and also as to how visible it was. It was not in dis­pute, however, that by the time the applicant returned to work on August 9, 1993 his supervisor Sobon, the plant manager Allan Bradshaw, and the operations manager Fraser Dimma were all aware that he had gone off work because of a rash on his hands.

12. While off work, the applicant contacted Sobon and asked for a copy of the Material Safety Data Sheet ("MSDS") on the oil-like substance on the parts. He was provided with an MSDS on Tuf Draw which was admitted into evidence. A different version of the MSDS on this product was also entered by the responding party during its case. It appears from a review of these two documents, and was confirmed by the evidence of Sobon, that the one provided originally to the applicani was a 1990 version of the MSDS and the other one is a 1992 update. There are no sig­nificant differences between the two documents: both indicate that prolonged or repeated skin contact with Tuf Draw may remove natural oils and cause irritation, and that sensitive or dry skin may be aggravated by over-exposure. Oil impervious gloves are recommended to be used as required to avoid prolonged or repeated skin contact.

13. The applicant advised his supervisor, and his doctor's report confirmed, that he would need to wear impermeable gloves in order to prevent recurrence and to promote healing of the existing rash. When he returned to work, the applicant brought with him latex surgical gloves which he had purchased at a drug store. Sobon told him that he would look into having the com­pany purchase more of these gloves for his use if they proved to be suitable. Both Sobon and the applicant agreed, however, that these gloves did not work out as they tore easily and often on the metal edges of the parts. The applicant asked for, and was provided with, pairs of the rubberized gloves, which he wore until his termination. He testified that these gloves were completely imper­meable, and that his rash got no worse, although no better, during the remainder of his employ­ment.

14. There was a dispute, however, between Sobon and the applicant as to how many pairs of the rubberized gloves he asked for and what he was told he could have. Sobon stated that he told the applicant that he could use as many pairs of the gloves as he needed. While cross-examin­ing him, the applicant disputed this statement but did not attribute any specific response to Sobon. In his testimony, however, the applicant suggested that Sobon said that he could have only three pairs of rubberized gloves per week. He claimed to need a new pair every day as he was using cream for his rash and needed to keep his hands clean. On this point, we must prefer the evidence of Sobon, both due to the applicant's failure to raise this alleged contradiction when the evidence first came out, and also because the applicant's testimony is to some extent a contradiction of the allegations contained in his application. On page 2 of Appendix "B" to the application, the appli­cant describes his return to work on August 9, 1993 and says "I also found that the company had supplied him (sic) with big rubber gloves. I had no problem with the gloves." There is no allegation in this paragraph, or indeed anywhere in the complaint, that Sobon or any member of management limited the number of pairs of rubberized gloves to which the applicant had access, or any allega­tion that the number of pairs provided was inadequate for the needs of the applicant.

15. After his return to work August 9, 1993, the applicant asked Sobon whether or not he would be continued in employment after the end of his probationary period, and Sobon replied that he would be discussing this with Allan Bradshaw, the plant manager. It was not disputed that on August 16, 1993, Sobon informed the applicant that his employment was being terminated. The evidence of Sobon and the applicant as to the reasons given for the termination was, however, quite contradictory.

16. Sobon testified that the performance of the applicant had been unsatisfactory through­out his probationary period, and that as a result he formed the conclusion, in consultation with Ramnarine and Bradshaw, that the applicant was unsuitable for the position. He had a number of complaints about the performance of the applicant: his productivity was generally below the aver­age of that of other employees on the same machines, was erratic and did not improve consistently with experience; he did not get along well with co-workers, resulting in friction in the workplace and interference with assembly line projects; he demonstrated a poor attitude, often complaining about tasks and trying to avoid those he did not prefer; and he failed to live up to overtime com­mitments after making them. These opinions were echoed by Ramnarine, the process engineer, who was responsible for training the applicant and the other employees hired to work on this spe­cialty part. He in fact reached the conclusion that the applicant was unsuitable for the posttion after the first month of training, and testified that he communicated this opinion to Sobon and Bradshaw at that time. According to Sobon, however, he wanted to give the applicant as long as possible to demonstrate his suitability, particularly as the applicant sometimes worked with suffi­cient speed and concentration to meet the expectations of the position. When the applicant went off work with the rash from July 26 to August 9, 1993, Sobon decided to extend his probationary period for one further week in order to give him a final opportunity to improve. In his view, how­ever, the applicant did not improve and he therefore decided, after consultation with Bradshaw, to terminate his employment with the company.

17. The applicant had quite a different version of his termination by Sobon. He testified that on August 16, 1993, after repeatedly asking Sobon for a decision as to his status, Sobon advised him that he was not suitable for the position because of the condition of his hands. This was put to Sobon on cross-examination by the applicant, and he denied having cited the applicant's hands as a reason for his dismissal. Sobon did, however, say that the applicant raised the question of his hands playing a role in the dismissal, and that he told him that they had not.

18. It was certainly clear from the evidence of the applicant that he formed the opinion that Sobon had decided to terminate him because of the dermatitis, but it was equally clear that he was

already apprehensive about this before he spoke to Sobon. Thus, he may have reached this conclu­sion in spite of, rather than because of, what Sobon said to him in the meeting. We are also inclined to accept Sobon's stated reasons for the termination given what we learned about the tim­ing of the decision. Both Sobon and Ramnarine testified that they had formed a negative opinion as to the applicant's suitability some time prior to him taking time off work due to the rash, although Sobon was prepared to give him to the end of his probationary period to demonstrate some improvement. No such improvement was noted. At the same time, there was no particular incident or exchange concerning the applicant's rash during the week after his return to work which would suggest that management had any particular concerns about the rash or the need for the applicant to wear gloves. Indeed, there was no evidence that they expressed any concern about these matters whatsoever, and indeed it would appear from the medical evidence produced that there would have been no reason for such concern so long as the applicant continued to wear impermeable gloves as he did that week.

19. Furthermore, the documentary evidence produced concerning production rates does support the assertion by Sobon and Ramnarine that the applicant's productivity was both erratic and below average. The applicant was given an opportunity to review the original production reports which were used to create the summary of production rates admitted into evidence, but he declined to do so. Nonetheless, he suggested in defence of the allegations concerning his productiv­ity that the reports must have been falsified. We cannot accept this bald allegation of falsification without some evidence to support it, and therefore must find the production summaries to be accu­rate records of the applicant's performance. As noted above, these summaries support the compa­ny's conclusions.

20. Finally, the evidence disclosed that no complaint was made by the applicant concerning health and safety conditions at the plant prior to his termination, and that he never refused to per­form work as a result of any concerns about his health and safety. As noted above, an anonymous complaint about an oil-like substance causing a rash in the welding area was made to the Ministry of Labour somettme after the applicant's termination, leading to an inspection of the workplace on October 12, 1993. After inspecting the workplace, the inspector reported that:

"...all the workers in that area were wearing PPE (personal protective equipment) also (sic) there was very little amount of oil on the parts. None of the workers in that area had any con­cerns with regards to getting a skin rash from handling these parts...

At the time of this inspection there were no health and safety concerns at the workplace."

ARGUMENT

21. The applicant submits that he was terminated by the company for one of two reasons:

because he insisted on being provided with impermeable gloves; and/or, because he had dermatitis on his hands. Thus, he claims that his dismissal was contrary to the Occupational Health and Safety Act as he was asserting his rights under that Act by seeking to be provided with appropriate safety equipment and to be permitted to work with a skin condition while wearing this equipment.

22. The company, on the other hand, submits that the applicant's termination was as a result of his unsuitability for the position, assessed at the end of his probationary period. The rea­sons for this assessment relate to poor performance, as detailed above, and had nothing to do with either the applicant's rash, or his need to wear gloves as a result of the rash. They assert, further­more, that they have done nothing to interfere with the applicant exercising any rights under the Act, while noting that the applicant did not raise any complaint under the Act prior to his termina­tion.

DECISION 23. Section 50 of the Occupational Health and Safety Act reads, in part, 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.

(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.

(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.

(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.

24. Thus, the burden of proof in a complaint under this section is on the respondent to establish that it did not act contrary to the legislation. In this case, we must find that the respond­ing party has met that burden of proof, by affirmatively establishing that the applicant, a proba­tionary employee, was terminated for reasons unrelated to any health and safety matters.

25. It is perhaps not surprising that the applicant formed the view that his dismissal must have been related to his absence due to a rash apparently caused by contact with the Tuf Draw, or to his request for gloves to protect from further exposure, given that the termination occurred only days after his return to work. Furthermore, it was not clear whether or not the company had ever made it clear to the applicant prior to his termination that they had grave concerns about his suit­ability and were considering dismissing him unless there was substantial improvement.

26. We are satisfied, however, that this timing was coincidental, as the applicant's proba­tionary period had come to an end, and that in any event the company had really reached its deci­sion as to the suitability of the applicant prior to his absence for treatment of the rash. A careful consideration of the evidence as a whole leads us to the conclusion that the applicant was termi

nated because it was the consensus view of management at the end of his probationary period that he had not proved suitable for continued employment due to poor performance and a poor atti­tude, as set out in greater detail above.

27. Furthermore, there is no evidence to suggest that the company was in whole or in part moved to terminate the applicant because he was seeking compliance with the Act. Even the evi­dence of the applicant about his conversation with Sobon on August 16th, which for the reasons set out above we have rejected, raises only the spectre of some concern on the company's part about the applicant's medical condition, which does not itself constitute an anti-safety animus. The appli­cant did not invoke the Act or the regulations at any time prior to his termination, and did not at any time refuse to work. His only conduct which can be construed as an exercise of rights under the Act was his request for a copy of the MSDS on Tuf Draw and for gloves to protect his hands from further exposure, and both of these requests were met by the company without any expres­sion of concern or opposition. In fact, it is clear from the evidence concerning the availability of protective equipment in the workplace that the applicant's requests required no special accommo­dation by the employer. This was confirmed by the applicant on cross-examination, who said that the week he returned he had "no problems with the company in terms of health and safety.. .that was a fine week".

28. For all of these reasons, we find that there has been no violation of section 50 of the Occupational Health and Safety Act by the responding party.

29. While the applicant did not specifically request that the Board consider the application of section 50(7) of the Act, we note that the Board has found in previous cases that we have a dis­cretion under that section to mitigate a disciplinary penalty, including dismissal, imposed by an employer for cause, even where there has been no violation of the Act. (See H.H. Robertson Inc., [1991] OLRB Rep. April 492; Bilt-Rite Upholstery Co. Ltd., [1990] OLRB Rep. July 755; Commonwealth Construction Company, [1987] OLRB Rep. July 961.) Having regard, however, to the lack of a collective bargaining relationship in this workplace, to the applicant's status as a pro­bationary employee, to his length of service, to the lack of any nexus between his termination and even a purported exercise by him of rights under the Act, and to the evidence called by the com­pany to corroborate the allegations of poor performance, we do not find this to be an appropriate case for an exercise of our discretion under that section.

30. The complaint is therefore dismissed.