Patricia Douglas v. Canadian Corps of Commissionaires (Hamilton), 1995 CanLII 9927

Ontario Labour Relations Board

[1995] OLRB Rep. May 601

4477-93-OH Patricia Douglas, Applicant v. Canadian Corps of Commissionaires (Hamilton), Responding Party

BEFORE: Christopher Albertyn, Vice-Chair, and Board Members O. R. McGuire and P. V. Grasso.

APPEARANCES: John Bland and Patricia Douglas for the applicant; Margaret Shanahan, Com­mandant Harold Wilcox, Major John Reid, Len Wallace and Robert Spencer for the responding party.

DECISION OF THE BOARD; May 18, 1995

1. This is an application under subsection 50(1) of the Occupational Health and Safety Act ("the Act"), as read with paragraph (b) of subsection 43(3), which reads,

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

(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; .

2. The applicant alleges that on about February 2, 1994 the responding party terminated her employment in circumstances which amounted to a violation of the Act. The responding party denies any such violation and contends that the applicant's employment ended on account of her refusing to perform the work to which she was properly assigned.

Evidence

3. The responding party is a non-profit organization in the security-related field. It employs only veterans and ex-service personnel. The Canadian Corps was incorporated in 1925 and the Hamilton division was established in 1937. That division has 305 full-time and part-time commissionaires.

4. The applicant is 48 years of age. She was formerly a member of the army militia reserve and, for a brief period, a clerk in the Canadian navy. She was employed by the responding party in September 1986. From June 1989 until January 19, 1994 the applicant was assigned by the respond­ing party to work as a night-shift courier on a newspaper in Hamilton. She worked contentedly in that capacity over that period, without adverse incident, never missing a shift.

5. During January 1994 the responding party received notice from the newspaper that, due to its need to economize, it would no longer require the applicant to act as a courier at night.

6. Commandant Wilcox is in overall charge of the management of the Hamilton division of the responding party. His immediate subordinate, the Deputy-Commandant, Major Reid, dealt

with day-to-day management, and he was the person who principally dealt with the applicant in respect of the matters which give rise to this application.

. Major Reid considered what alternative positions might be available to the applicant and, after seeking the views of a few commissionaires, he decided that the job which most resem­bled that of the applicant was as a security guard at night in the old post office in Hamilton, due for substantial renovation and conversion into a court house. To open the position for the applicant, Major Reid re-assigned the incumbent part-time or spare-board employee to a position outside of the post office. He did not discuss her re-assignment with the applicant. He merely informed her that her newspaper courier job would end and that she was to start at the old post office on Febru­ary 1, 1994.

8. The applicant felt uncomfortable about the post office assignment because she had heard from other commissionaires that it was not a good location at which to work and that there was to be construction done there. She raised her concerns with Major Reid when he told her of the assignment. She suggested that she be placed on the spare-board. That was not financially advantageous because she would then have been assigned only as a replacement. Major Reid rejected that suggestion. He felt it was not in the applicant's best interest. He had created the posi­tion for her so that her income remained roughly commensurate with what she was accustomed to receive previously. He told her that there was no alternative. Either she accepted the post office position or there was no place for her with the responding party. Her employment would be termi­nated for refusing comparable employment. Since she was concerned that construction was to com­mence imminently, Major Reid undertook to inquire and to revert to her.

9. The applicant's request to be placed on the spare-board is contemplated in the respond­ing party's Rules and Regulations. Under the heading, "Allotment of Available Employment", the following appears,

Every effort will be made to offer to members of the Corps, a fair share of the employment available with consideration being given to the suitability of a person for a particular type of employment. If steady employment is not available or not desired, the Commandant may place a Commissionaire on the temporary or supernumerary list or terminate his/her engagement.

10. Major Reid informed the applicant that construction was not to commence for some time and that she had to accept the position that was being offered to her, or her employment would be terminated.

11. The applicant felt that she had no alternative but to accept the appointment and, with reservation, she advised Major Reid that she would accept the post office assignment.

12. The applicant's shift was to be from 11:00 p.m. until 7:00 a.m. each night. She accompa­nied Mr. Murray Slater on the night of February 1, 1994 so that he could inform her of her duties and introduce her to her new work site. The applicant was to have this one orientation shift. From the next night she was to act alone as the security guard.

13. The applicant was to be based in the sub-basement. She understood that every 2 hours she was to conduct an inspection of the first 4 floors of the old building, to check the exits and the windows for any signs of forced entry. (In fact, she was required to inspect only up to the main floor, i.e. the sub-basement, basement and the main floor). She was to make a call to the Canadian Air Force base every 2 hours to report any incident, or for the purpose of making periodic contact. The applicant estimated that her patrol around the building every 2 hours lasted between an hour and an hour and a half on each occasion. The duration of the inspection rounds is probably less than that, given the testimony of Mr. Slater and Mr. Wallace, whom the applicant replaced. The applicant understood that about half her time on shift was to be spent conducting the inspections of the building, the other half sitting in the security office in the sub-basement.

14. The applicant felt extremely uncomfortable in the old post office building. She was con­cerned that she was not safe in the sub-basement. She was troubled that an intruder might be able to enter the boiler room where the commissionaire's office is situated. She felt she could not see or hear an intruder breaking in. By the time she was aware of an intruder, she would have been unable to telephone for assistance. If there were a fire there was only one exit to the floor above, where there were two exits. The fire extinguishers she saw were empty. She felt concerned that if there were a fire in the building she would be trapped in the sub-basement. There were mosquitoes in the sub-basement and a smell of smoke, which troubled the applicant. On the night of the appli­cant's induction there was no running water in the building. That added to her concern. Even the drinking fountain, near the commissionaire's security office in the sub-basement, was dry. The applicant was cold. The heating in the building is turned off each day at 2:00 p.m. so that there is no heat coming into the building from then, during the night, until 7:00 a.m. the following day, when the caretaker, Mr. Spencer, would fire the boilers. By the time the applicant commenced her first shift at 11:00 p.m. the heating in the building had been off for several hours. She had the use of a portable heater, but she felt cold and uncomfortable. (There is usually a second heater in the sub-basement, but, as far as the applicant was aware, there was only one heater that night). Mr. Slater, who worked with the applicant on her first shift said that it was very cold in the building that night. The applicant felt unsafe, so much so that she could not face a night in the building on her own.

15. Following her first shift, on the next day, February 2, 1994, the applicant spoke to Major Reid. She explained her disquiet to him. She claims that she suggested that the security office might perhaps be moved from the sub-basement. She recalls that Major Reid said that he did not think that was possible, but he would make inquiries. Major Reid has no recollection of this part of the conversation. The applicant raised her other concerns, viz, that the building was cold, there was no water, someone had been smoking in the sub-basement, there were mosquitoes in the sub-basement, there was no separate washroom facility and the elevator was too difficult for her to operate. He undertook to revert to the applicant. He did so later in the day after he had taken a look at the post office himself, accompanied by the caretaker, Mr. Spencer, to satisfy him­self that the building was adequate for the applicant to work there. There was no suggestion made by Major Reid to the applicant that she accompany him on such an investigation. Upon his return to his office, he left a message on the applicant's voice mail, asking if she would be going to work that night.

16. The responding party was aware that, in terms of section 43(4) of the Act, the applicant was entitled to accompany management when it conducted its investigation under that section. The applicant was available to accompany management in the investigation of her refusal to work, but she was not asked to do so.

17. The applicant returned Major Reid's call. He told her that the water supply to the building had been restored. The absence of water the previous night had been caused by a broken pipe, which had been repaired during the day. Major Reid asked the applicant if she would be returning to work that night. She said that she would not. She told him that she would contact the health and safety authorities. Major Reid then said that he had consulted with Commandant Wil­cox and if she was not willing to work at the post office that night her employment was terminated.

18. The applicant inquired of Major Reid if there was not another full-time position for her, besides being on night duty at the old post office. She also asked if there was a part-time or call position to which she could be assigned. She inquired if she could bump another commissionaire with less seniority than herself. Major Reid advised her that seniority played no role in the responding party. He said that there was no alternative position for her and, if she was not pre­pared to work that night at the post office, then he regarded her as having quit her employment. The applicant asserted that she was not quitting. She said that she was prepared to work, but only in a workplace where she felt that she was safe. She continued to raise her fears and concerns regarding the old post office until Major Reid felt that nothing more would be gained from the conversation, and he hung up on her while she was still talking.

19. Mr. Wallace remained as a security guard at the post office when the applicant did not return. His re-assignment to another posting was shelved. His experience of working the night shift as the responding party's security guard at the post office is different from that of the applicant. He has no difficulty with the cold. He feels that the two heaters in the commissionaire's office are more than adequate when the door to the office is kept closed. He has not felt intimidated working at night in the sub-basement. He did not understand his duties as requiring that he inspect any por­tion of the building above the first floor. This differed from what the applicant understood of her duty to inspect the building up to the 4th floor.

20. The applicant phoned the Ministry of Labour to lodge a health and safety complaint. She was told that she should wait until she received her record of employment. She did so and on February 11, 1994 she met with an investigation officer of the Ministry and she made her com­plaint.

21. The Ministry's Occupational Health & Safety complaint form records a number of com­plaints by the applicant. The complaints were written down by a health and safety officer. They read:

Worker contacted Ministry by phone Feb. 3 .. re. working conditions. Worker states that she worked on Feb. 2nd and there was no heat, water, washroom facilities, also debris all over and their office was located in basement so they would not hear if anyone broke in. She informed her boss, Major Reid, who told her she was terminated.

22. A Ministry Occupational Health and Safety officer conducted an investigation at the post office on February 18 and March 3, 1994. Despite the provisions of section 43(7) of the Act, he did not speak to the applicant before doing so and she did not accompany him on his investiga­tion. In fact, at no stage during the investigation did the officer actually speak to the applicant. The officer spoke to Major Reid and, despite the said provision under the Act, told him that his pres­ence was not necessary at the investigation. Major Reid's contemporaneous note of his meeting with the officer records that the officer was "to put her claims at rest". Major Reid could give no explanation as to why he chose this particular phrase.

23. The officer went to the post office premises where he met with the building's caretaker, Mr. Spencer, who accompanied him during his inspection of the workplace. The officer deter­mined that the water supply had been restored, that the building was heated during the day when he visited and that there was some ventilation of the security office if the door was kept open. The officer was shown separate washroom facilities for men and women on the building's first floor, and a single washroom in the sub-basement. His written report reflects these observations.

24. When questioned at the hearing, the health and safety officer was unaware that the heating in the building was turned off in the afternoon and not restored until the following morn­ing, and he was unaware that there had been no running water in the building on the one night that the applicant worked there.

25. The applicant sought to ameliorate her loss of income, pending the outcome of this application, by finding alternative employment. She made several attempts to find employment, and she secured a temporary position with the Disney company from September 14, 1994. Besides unemployment insurance, she received no remuneration for the period February 1, 1994 until that date.

26. Mr. Spencer testified last. He is a 4th class stationary engineer and the caretaker of the old post office in Hamilton. He has considerable knowledge of the building. Prior to the hearing he had never had occasion to speak to the applicant.

27. Mr. Spencer explained that the post office is provincially owned, though federally administered. He himself is employed by the Department of Public Works. He was able to explain that, in January-February 1994, there was a functioning fire alarm system, a stand pipe and a sprin­kler system in the building. In addition, there was an operational fire-extinguisher in the sub-base­ment. He himself conducted monthly inspections of the fire prevention system and he serviced the alarms. The empty fire extinguishers which the applicant had seen in the sub-basement were wait­ing to be serviced. There were other functioning fire extinguishers available at the time. In the event of a fire, the alarm would sound in the building, at the fire department and at a fire monitor­ing service. The fire department's response time is approximately 3 minutes. In addition, in the event of a fire the openings between the walls were fitted with fusible links which would isolate a fire to a particular area of the building. All of the entrances into the boiler room in the sub-base­ment, where the security office was situated, were fitted with fire-rated doors.

28. As regards the possible threat of an intruder, Mr. Spencer explained that if one were sitting in the security office an intruder would be audible for sufficient time to enable one to phone for help. One could lock oneself inside the security office. In addition, the doors entering the sub­basement all have locks on the inside, so it would not be possible for an intruder to enter that area without a key to the doors. Furthermore, there is a police station located about 4 blocks from the post office, so if the police were summoned they could be at the post office very quickly. In Mr. Spencer's assessment, the sub-basement is the most secure area in the building.

29. There are normally two heaters in the sub-basement: one an electric base-board heater, the other an oil-filled radiator heater. Mr. Spencer had no objection to commissionaires bringing their own heaters to the security office. The building was heated for about 8 hours a day, in the morning after the night shift was completed. Mr. Spencer regarded the building as being well-insu­lated.

30. There is a washroom in the sub-basement, beside the freight elevator. There are sepa­rate washrooms for men and women on the first floor.

31. The freight elevator can be opened only from the inside. One has to be inside the cab to operate the elevator. That means that, if the elevator were in the sub-basement, it would be impos­sible for someone on the first floor to make use of it to get to the sub-basement area.

32. Mr. Spencer considered there to be no safety hazard in the building.

33. When the applicant worked at the post office she knew none of the information given by Mr. Spencer in his testimony.

The Responding Party’s Argument

34. Counsel for the responding party submitted that Mr. Spencer's evidence and the report of the Ministry's Health & Safety Officer established beyond doubt that the old post office was a safe work location. The applicant had no reasonable cause for concern about working there.

35. Ms. Shanahan submitted that the applicant had a preconceived antipathy to working at the old post office, which led her to feel uncomfortable about working there. She did not like the fact that her job for the past several years had come to an end and she did not like the change that was contemplated for her. There was no genuine health and safety concern on her part. On the contrary, she did not like the workplace and therefore she unreasonably refused to work there, in violation of her employment obligations. Only subsequently did she construe her discomfort and her dislike of the old post office as a health and safety concern. Ms. Shanahan submitted that the applicant could not establish an entitlement to refuse to work under the Act merely because she felt uncomfortable, she had to go further and establish that there was a reasonable likelihood to her of danger.

36. Section 43(3)(b) of the Act is relevant to this application. That paragraph provides that an employee may refuse to work if she has "reason to believe that the physical condition of the workplace .. is likely to endanger herself'. Counsel for the responding party submitted that there was no reason for the applicant to believe that the physical condition of the workplace was likely to endanger her, even on a subjective basis of assessing the possible danger as described in Elgaard v Sidbec Dosco Inc., [OLRB Davie, Dec. 7, 1988] [1988] OLRB Rep. Dec. 1334. The circumstances of the workplace were those described by Mr. Spencer. Counsel for the responding party argued that there was no reasonable basis for the applicant to have concluded that she was in any manner endangered by the workplace.

37. The applicant's first concern was that there was insufficient heating in the security area. Mr. Spencer’ s evidence established that there were two heaters in that area and the building was well-insulated, thus retaining heat from the day when the boilers were operative.

38. The applicant's second concern was that the security office should not have been located in the sub-basement because it was not safe from possible intruders. Mr. Spencer's evi­dence showed that not to be the case.

39. Ms. Shanahan suggested that the applicant had an obligation to inform herself of her working environment before making a complaint, and that she had acted frivolously by refusing to work before she had undertaken even the most rudimentary investigation of her concerns. Had she done so, she would have established clearly that she had no cause for concern in working at the old post office.

40. The responding party did not act improperly because the applicant did not express her concerns as being of a health and safety nature. She expressed her displeasure as a matter of per­sonal discomfort, not as a matter of being endangered by working at the old post office. The responding party was not alerted that the applicant's concerns fell within the parameters of the Act. Hence the responding party did not act improperly by failing to address her concerns as health and safety concerns. They investigated her complaints of discomfort and found them to lack substance. They informed her that she did not have reason to be concerned and that she should resume her work the following night. That the applicant refused to do and accordingly she effec­tively quit her employment.

The Applicant's Argument

41. Mr. Bland submitted that the applicant's bona fide belief that her safety was in jeopardy meets the subjective test as to whether she could refuse to work, pending a proper investigation thereof. She immediately voiced her concerns to the responding party, but the responding party failed to take appropriate action to attend to her concerns and particularly to satisfy the applicant that she was not, in fact, in danger working alone on the midnight shift in the old post office.

42. When responding to the applicant's safety concerns, the responding party did not include her in their investigation, but merely said to her that her concerns were unfounded. That is not an adequate response and it was reasonable, in the circumstances, for the applicant to refuse to return to work at the old post office.

43. Mr. Bland submitted that had the responding party conducted an investigation prop­erly, as contemplated in section 43 of the Act, the applicant's reasonable concerns might have been seriously addressed, making it possible for her to return to work with her legitimate worries allayed.

44. The applicant fulfilled her obligations under the Act. She reported her concerns promptly to management, she remained accessible to attend an investigation at the work site and she was willing to attend any investigation had she been requested to do so. In contrast, the responding party's investigation of her complaints was procedurally and substantively flawed. The applicant was not notified of the Ministry's investigation, she had no in-put into the responding party's investigation (nor into the Ministry's investigation) and there was no substantive basis to discount her concerns without her in-put. The responding party's termination of the applicant's employment effectively prevented her from taking any part in the investigations conducted under the Act.

45. The applicant's only knowledge of the workplace was that which she gained while on the shift she worked on the night of February 1, 1994. She felt endangered during that shift. Even Mr. Slater, who had often worked at the site, said that he felt fearful at times. There was no water that night and it was extremely and uncomfortably cold. The applicant was never shown the safety doors, nor in any manner were her reasonable fears addressed. Her concerns were genuine and rationally founded, on the subjective test which applies in matters of this sort. She expressed her fears and doubts and her concerns ought to have been properly addressed by the responding party. Instead, the responding party utterly discounted the applicant's concerns and effectively ordered her back to work.

46. The applicant did not quit her job. She was discharged for exercising a right given to her under the Act. She should accordingly be reinstated in her employment.

47. Following Mr. Spencer's evidence, the applicant's counsel informed the Board that the applicant was willing, if reinstated, to return to the old post office to resume her duties there.

Decision

48. The issue to be determined is whether the applicant's refusal to work falls within the ambit of section 43. Under paragraph 43(3)(b) the applicant must show that she refused to work because she had reason to believe that the physical condition of the old post office was such as to be likely to endanger her.

49. Section 43(4) of the Act contemplates various stages in the processing of a health and safety complaint. These stages are explained in Elgaard v. Sidbec Dosco Inc. (1988) 1 COHSC 102, at 103. In the first instance the employee must genuinely believe that s/he will be endangered by continuing to work at the workplace concerned. The test at that stage is a subjective one - not purely subjective in the sense that any feelings of anxiety of the employee, however absurd or capricious, must be given credence, but subjective in the sense that the employee's concern must be firmly and sincerely felt and the reasonableness of the employee's refusal must be judged from the perspective and circumstances of the complainant, bearing in mind all of the factors which in fact weigh upon him/her at the time.

50. The purpose of this first stage of the process is to inform the employer to a possible health or safety hazard. If the employee's fears prove in fact to be correct, then the employee's work refusal has the beneficial effect of alerting the employer to a dangerous circumstance which management can then attend to. If the employee's fears prove to be groundless, then, by stopping work and bringing those fears to management's attention, the employee creates an opportunity for management to investigate the concerns with the employee and to demonstrate to the employee why there is really no reason for him/her to be fearful or concerned.

51. The second stage occurs after the investigation by management, with the employee in attendance, contemplated in subsection 43(4). The employee may continue to refuse to work after the investigation conducted by the employer and the other persons referred to in that subsection, but at that point the standard, upon which the employee's work refusal is to be judged, changes. A higher standard now applies, no longer the subjective test described above, but an objective test. Now the employee's refusal is not judged from his/her perspective, but from the perspective of the adjudicator. The adjudicator evaluates and assesses the physical condition of the workplace and decides whether it was reasonable for a worker (not the employee specifically) to refuse to work there because of a reasonable fear of being endangered. (Elgaard v Sidbec Dosco Inc., (1988) 1 COHSC 102.)

52. If the employee continues to refuse to work after the inspection conducted with the employer under subsection 43(4), the third stage comes into effect. An inspector investigates the work refusal, under subsection 43(7), and the inspector determines if the workplace is safe or not. The inspector's determination is intended by the Act to bind the parties.

53. Our first inquiry is whether the applicant's complaint satisfies the subjective test described above. The applicant's fears of harm, or potential harm, to herself were keenly and hon­estly felt. She was bona fide in her complaints and concerns. Her fears were not capricious, nor absurd. She received limited information concerning her work environment during her first shift and her experience that night was sufficient to warrant her concerns. She was neither unduly sensi­tive, nor excessively phobic. Although the applicant's experience resulted principally in her feeling uncomfortable working in the old post office, she also feared danger to herself as she contemplated having to be there alone in the future, after the first, introductory shift with Mr. Slater. Accord­ingly, in our view, the applicant's refusal to work meets the requirements of the subjective test.

54. The responding party argued that the applicant was not included in the investigation conducted by management in terms of subsection 43(4) because the information provided by the applicant was inadequate. It was not such as reasonably to inform the responding party that the applicant was concerned that the physical condition of the old post office might be likely to endan­ger her. In other words, the responding party contends that the complaint made by the applicant to Major Reid on February 3 was not sufficiently specific for him to realize that she was worried about her safety.

55. What is abundantly clear from the evidence is that the applicant was frightened of work­ing alone in the old post office. Her telephone call to Major Reid plainly conveyed to him that she was scared of returning to work there. She had several fears for her safety: she was worried about the possibility of an intruder finding her there alone; she thought that the security office was too isolated, situated as it was in the sub-basement; she was troubled by the extreme cold she had experienced; she was worried about having no drinking water available to her. All of these con­cerns, and the others expressly mentioned to Major Reid, made her feel that she was not safe in the old post office.

56. The applicant may not have used the words, "unsafe", or "endangered", but the clear tenor of her discussion with Major Reid was to that effect. Major Reid ought to have realized that the applicant's refusal to work in the old post office after her first shift there, was because she was too frightened to do so. She felt, to use the words of the statute, that she was likely to be endan­gered if she worked there alone.

57. The Act contemplates that Major Reid should have requested the applicant to accom­pany him to the work site, for them to inspect it together and to seek to address her concerns together. The involvement and participation of the affected employee is vital to the procedure con­templated in the Act. The employee's health or safety fears cannot be properly and fully addressed unless the employee is in attendance at the work site, or at least, unless the employee has an opportunity to be so present in person or through a representative. Had that occurred in this case, the applicant would have met Mr. Spencer who, in evidence at the hearing, was able to explain that the applicant had no reasonable grounds to believe that she would be endangered by working alone in the sub-basement. The Act envisages that the investigation will be an opportunity for per­suasion between those present - the employee points out his/her concerns and those present address the concerns together, endeavouring to solve a problem together. The investigation is intended to give the employer an opportunity to conduct "a careful tracking down of facts, a pro­cess whereby one looks over something or tests it carefully to learn facts, and suggests a search that is conducted by asking questions and obtaining answers" (Elgaard's case, supra, p. 117). If the employee continues to refuse to work after having gained the informed views of those present in the investigation, requiring the third stage to occur (the inspector's investigation), then the employee should by that stage know why management regards the workplace as being safe. That is the reason that a more stringent, objective test is applied to the employee's refusal at the second stage.

58. The applicant did not have the benefit of listening to Mr. Spencer and of having him explain the security system, the fire alarm system and the other features of the building, which explanation would in all likelihood have allayed her fears, as it did at the hearing. Instead, she received a curt phone-call from Major Reid telling her that he had checked on her problems and that she had no reason to be concerned, and asking her if she was returning to work, or not. Major Reid conducted a unilateral investigation and he reached a unilateral conclusion concerning the applicant's complaint. In so doing, he breached the responding party's statutory duty fully to involve the applicant in the process of investigation. See, in this regard, Kunz v Iacovoni and Andrew Antenna Company Ltd. (1989) 2 COHSC 11 (Director of Appeals (Ontario)).

59. The second stage in the process of investigation failed to materialize because Major Reid did not include the applicant in the process. He ought to have done so. The complaint made by the applicant to him was sufficiently clear for him to have realized that he was dealing with a refusal to work under section 43 of the Act.

60. The responding party contended that the applicant had quit her employment. That is not so. She never expressed an intention to be no longer bound by the terms and conditions of her employment. She explained her reticence to work in a particular location because of fears for her safety. She intended her employment to continue, once the impediment to her safety was removed. The applicant's employment was terminated by the responding party on account of her refusal to return to work at the old post office. See, in this regard, Warren v Orlick Industries Ltd., 47 C.C.E.L. 198 at 199-200, paragraphs 3, 4 and 5.

61. Accordingly, we find that the applicant refused to work because she had reason to believe that the physical condition of the old post office was such as being likely to endanger her. Her work refusal complied with the provisions of section 43(3)(b) of the Act. The responding party's dismissal of the applicant falls within the provisions of section 50(1) of the Act. We find that the applicant's dismissal was wrongful and that she is entitled to a suitable remedy.

62. We now consider the remedy. This matter came before the Board a relatively long time after the incident. The applicant was dismissed on February 2, 1994. The application was heard by the Board nearly a year later. The reason for the delay is partly the responsibility of the applicant. The application was due for hearing in March 1994. The responding party was prepared to pro­ceed. The applicant sought an adjournment, which was agreed to by the responding party. The applicant appointed new counsel to represent her. The applicant was ready to proceed by July 1994 and her counsel informed the responding party's counsel thereof. There was some delay by the responding party in having the matter scheduled for hearing.

63. The applicant has received some income from the Unemployment Insurance Fund and since September 14, 1994 she has been employed in a part-time capacity by the Disney organiza­tion and she received some remuneration.

64. In our view, the appropriate remedy is that the applicant be reinstated in the respond­ing party's employment with compensation. However, given the circumstances of delay in prose­cuting her claim, we direct that the compensation payable by the responding party will be from August 1, 1994. The remuneration received by the applicant since that date is to be deducted from the amount of such compensation.

65. We retain jurisdiction to deal with any matter which the parties cannot resolve, arising from this decision.