Maria Raposo v. Hurley Corporation, 1994 CanLII 9874

[1994] OLRB Rep. August 1002

0933-94-OH Maria Raposo, Applicant v. Hurley Corporation, Responding Party

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Daniel Ublansky and Maria Raposo for the applicant; Manny Silva, Manuel Rebolo, Maria Castro and Maria V. DaSilva for the responding party.

DECISION OF THE BOARD; August 18, 1994

1. This is an application under section 50 of the Occupational Health and Safety Act (some­times referred to in this decision as "the O.H.S.A."), alleging that the applicant (sometimes referred to as "Raposo") was discharged from her employment by the responding party (some­times referred to as "the company") contrary to sections 25(2)(h), 27(2)(c), 43, 50(1)(a).

2. Those sections of the O.H.S.A. read as follows:

25.-(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the circumstances for the protection of a worker.

27.-(2) Without limiting the duty imposed by subsection (1), a supervisor shall,

(c) take every precaution reasonable in the circumstances for the protection of a worker.

43.-(3) A worker may refuse to work or do particular work where he or she has reason to believe that,

(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker.

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circum­stances of the refusal to the worker's employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his or her work station.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be likely to endanger himself, her­self or another worker.

(b) the physical condition of the workplace or the part thereof in which he or she works continues to be likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger himself, herself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

(7) An inspector shall investigate the refusal to work in the presence of the employer or a per­son representing the employer, the worker, and if there is such, the person mentioned in clause (4)(a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the workplace or part thereof is likely to endanger the worker or another person.

(9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4)(a), (b) or (c).

(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his or her work station during the worker's normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during such hours; or

(b) subject to section 50, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the workplace or in the part of the workplace being investigated unless, in the presence of a person described in subsection (12), the worker has been advised of the other worker's refusal and of his or her reasons for the refusal.

(12) The person referred to in subsection (11) must be,

(a) a committee member who represents workers and, if possible, who is a cer­tified member;

(b) a health and safety representative; or

(c) a worker who because of his or her knowledge, experience and training is selected by the trade union that represents the worker or, if there is no trade union, by the workers to represent them.

(13) A person shall be deemed to be at work and the person's employer shall pay him or her at the regular or premium rate, as may be proper,

(a) for the time spent by the person carrying out the duties under subsections (4) and (7) of a person mentioned in clause (4)(a), (b) or (c); and

(b) for time spent by the person carrying out the duties under subsection (11) of a person described in subsection (12).

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.

3. At the conclusion of the hearing into this matter the Board made the following oral ruling:

I have carefully considered the evidence and arguments presented by the parties. The applicant claims that she is unable to wear her uniform blouse and bow-tie done up to the neck because of a thyroid condition. She has presented two doctor's notes to that effect to the responding party employer.

The responding party was willing to allow her to undo her top button and attach the bow-tie to the second button. The applicant claims that she needs to undo the top two buttons and has therefore been wearing the bow-tie at the third button. The applicant refused to do up the sec­ond button and wear the tie there as it would exacerbate her condition. As a result she has been suspended on three occasions, most recently for an indefinite period.

The Board finds that the responding party has suspended the applicant contrary to section 50(1) of the Occupational Health and Safety Act. The applicant is entitled to rely upon the protection of that Act and not have to work in a manner or to use any equipment including items of cloth­ing in a manner that will endanger her health. It was reasonable for her to refuse to do up and clip the tie to the second button and to clip it at the third button instead.

Accordingly the Board:

1. declares that the responding party has contravened the Occupational Health and Safety Act;

2. orders the responding party to reinstate the applicant, Maria Raposo, to her former position with full compensation for any lost wages and benefits;

3. orders the responding party to permit the applicant, Maria Raposo, to wear her uni­form with the top two buttons undone and to wear her bow-tie clipped right above the third button as demonstrated by her in her evidence was her practice.

The Board will remain seized to deal with any issues arising with respect to damages.

Written reasons were requested by counsel for the applicant and are here provided.

4. The resident manager, Maria DaSilva, the area manager, Manuel Rebolo, the work­place health and safety representative, Maria Castro and the Manager of Human Resources, Manny Silva who also presented the case, testified for the company. Maria Raposo testified on her own behalf. She presented her evidence through an interpreter' who also assisted the other wit­nesses at various points in their testimony.

5. Few of the relevant facts in this matter are in dispute. The company provides cleaning services to office buildings in downtown Toronto. The applicant works at the Sun Life building.

6. The applicant suffers from a thyroid condition which is aggravated by anything around her neck. The uniform for the company's employees at the Sun Life building includes a blouse and a bow-tie tied around the neck.

7. There was a dispute as to whether Raposo had ever worn the bow-tie, but certainly by May of this year she was not wearing it. On or about May 20, she was suspended for not wearing the tie. She then provided a doctor's note which explained her medical problem and recommended that she not wear anything tight around her neck.

8. It does not appear that the company ever really questioned Raposo's medical problem. Certainly it indicated at the hearing that it was not questioning it. The only independent investiga­hon conducted by the company was through the Manager of Human Resources, Manny Silva, who discussed the matter with his own doctor. Mr. Silva testified that his doctor confirmed that a thy­roid problem would be aggravated by something tight around the neck but would not be bothered by "something loose". Later Raposo submitted a further doctor's note which advised that she should not be wearing a bow-tie.

9. The company left Raposo in the position of choosing to either wear the bow-tie or not return to work. She therefore did not return to work right away. The company finally advised her that she had the choice of being provided with a larger blouse to which she could clip the tie or be transferred to another building where a bow-tie was not required but where she would receive less pay.

10. Raposo chose the option of clipping the tie to a larger blouse and returned to work. However, she was suspended on two further occasions, the final one indefinitely because, the com­pany claimed, she would not wear the bow-tie.

11. However, Raposo's supervisor DaSilva testified that Raposo did wear the tie but that she wore it somewhere from upper to mid-abdomen. Maria Castro, the health and safety represen­tative, indicated in her testimony that Raposo wore her tie somewhere between her breasts. The area manager, Manuel Rebolo, testified originally that Raposo was wearing the bow-tie some­where between upper and mid-abdomen. However, he then advised that she was wearing it at the "third button". When a blouse was finally produced he confirmed that her tie was being worn at the third button.

12. Raposo demonstrated to the Board how she had been wearing the blouse and tie. She confirmed that she had been wearing the tie at the third button. She explained that she needed the shirt undone to the third button because having it done up any tighter aggravated her condition. The Board finds that the applicant wore her tie immediately above the third button as indicated by Rebolo and demonstrated in Raposo's own evidence. This arrangement in the Board's observa­tion, while perhaps less "tidy" than having all of the buttons done up is certainly perfectly modest.

13. Thus, although the company's disciplinary memos indicate that Raposo was being sus­pended for not wearing her bow-tie, in fact, she was being suspended for wearing her bow-tie at the third instead of the second button.

14. Another employee of the company also had a disability which prevented her from wear­ing the bow-tie. She was allowed to continue working at the Sun Life building without one.

15. As noted above, the workplace health and safety representative testified. She stated that she had been appointed to that position by the company in February and had been elected to it at the end of June. It was apparent from her testimony that she had little idea what rights, obli­gations and protections are contained in the Occupational Health and Safety Act. She seemed to be unaware of both the right of employees to refuse work they consider to be unsafe, as well as of the procedures that are to follow such a refusal. She was not present at any of the meetings the com­pany had with Raposo about the bow-tie.

16. The applicant pleaded that she had been discharged. The responding party denied that she had been discharged and claimed that she had been suspended with the choice of either return­ing to work and wearing her blouse and tie as specified or being dismissed. The Board finds that the company's characterization is more accurate but that makes little difference to the applicant if she is not permitted to return to work without wearing the tie and blouse in the manner that would exacerbate her illness.

17. The company argued that it had tried to accommodate Raposo's disability and that she was just being defiant in not wearing her tie exactly as directed. The company also indicated that it was willing to take her back if she would wear the tie at the second button.

18. It was the applicant's position that she had been discharged for attempting to enforce the Act. Counsel argued that wearing the tie at the third button and the fact that Raposo stayed off work rather than wear the tie as directed amounted to a work refusal even though the appropriate statutory procedures were not followed. He asserted that the company had an obligation to pro­vide Raposo with alternate work until the work refusal procedures in the Act had been exhausted. The Board was referred to what counsel called the "susceptible worker policy" contained in the Operations Manual used by the Occupational Health and Safety Branch and to a decision of the New Brunswick Court of Queen's Bench, McLean v. Humpty Dumpty Foods Ltd. (February 3, 1994, unreported).

Decision

19. The applicant refused to wear an item of clothing provided by the company in a manner that she reasonably believed was unsafe for her. There is no difference in principle between this situation and one in which a worker refuses to wear footwear or head gear in a manner that he or she perceives to be unsafe. Whether or not this situation is characterized as a work refusal, by refusing to comply with directions from the company which she believed would endanger her health she was attempting to enforce the Occupational Health and Safety Act. A worker need not name the O.H.S.A. in order to claim its protection, including its protection from reprisals pro­vided she is motivated by health and safety concerns and identifies those concerns. (See Whitler Industries Limited, [1991] OLRB Rep. May, 718; Village Pool and Spa, [1990] OLRB Rep. Sept. 987; Boston Insulated Wire and Cable Co., [1990] OLRB Rep. Dec. 1235, Bill's Country Meats, [19984] OLRB Rep. Nov. 1549, Frankel Steel Ltd., [1985] OLRB Rep. Aug. 1210.)

20. It does not matter in these circumstances that the health and safety risk identified by the worker is a risk to her as a result of a disability. All workers are protected under O.H.S.A. and cannot be subject to reprisals for refusing to work in a manner which they honestly and reasonably believe is unsafe for them. As noted above, section 43(3) states that "A worker may refuse to work or do particular work where he or she has reason to believe that any ... thing the worker is to use or operate is likely to endanger himself, herself or another worker".

21. The applicant honestly and reasonably refused to wear an item of clothing in a manner that she believed would endanger her health. This was an attempt to enforce the O.H.S.A. As a result, she was suspended on a number of occasions. She was therefore subject to reprisals con­trary to section 50(1) of the O.H.S.A. For these reasons the Board made the orders listed in para­graph 3. The Board is empowered to make such orders under section 91(4) of the Labour Relations Act referred to in section 50(3) of the O.H.S.A. Although not expressly referred to in the oral rul­ing, I hereby direct that the applicant's record be cleansed of any and all documentation relating to this matter.

22. It is somewhat surprising that the Board would be required to hold a hearing with respect to a dispute which is essentially about whether or not a worker with an acknowledged med­ical condition involving her neck should wear her bow-tie at her second or third button. Such a dis­pute poses the danger of trivializing the important rights and obligations contained in the O.H.S.A. as well as the Board's role in adjudicating certain disputes under that Act. The Board urged the parties to resolve this matter between themselves but they were unable to do so. It is the Board's view that this is a matter which should have been resolved without the necessity of its intervention. Nevertheless, it is the Board's responsibility to adjudicate a dispute arising under sec­tion 50(1) provided that a prima facie case is made out. Certainly in this case, while the real issue between the parties may have been trivial, the consequences were potentially serious for the appli­cant.