William J. Viveen v. United Steelworkers of America Local 7135, 1995 CanLII 9993

William J. Viveen v. United Steelworkers of America Local 7135

[1995] OLRB Rep. January 85

2573-94-U William J. Viveen, Applicant v. United Steelworkers of America Local 7135, Responding Party v. National Steel Car Limited, Intervenor

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Rundie and J. Redshaw.

DECISION OF THE BOARD; January 26, 1995

I

1. This is a complaint under section 91 of the Labour Relations Act that was received by the Board on October 18, 1994.

2. The complainant, William Viveen, contends that United Steelworkers of America Local Union 7135 ("the union") has contravened various sections of the Labour Relations Act. National Steel Car Limited ("the employer") has intervened in this proceeding.

3. Before turning to our disposition of this complaint, it may be useful to review some of the background to the case and say something about the legal framework within which the parties' rights must be determined.

4. The Ontario Labour Relations Act and the Occupational Health and Safety Act contain the following provisions:

Labour Relations Act

91.-(1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of;

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

108. -(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

Rules

12. Any application filed with the Board must include the following details:

(d) a detailed statement of all the material facts on which the applicant relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

16. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, and when and where it happened, and the names of any persons said to have acted improperly.

17. Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its

reasons. The applicant may within twelve (12) days after being sent that decision request that the Board review its decision.

Occupational Health and Safety Act

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 Art, 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.

5. We might note, parenthetically, that the Board's role in "enforcing" the Occupational Health and Safety Act is a very limited one. The Board does not have the general authority to receive complaints of a violation of the Act nor to direct compliance with the Act or Regulations. That is the responsibility of the Ministry of Labour and its inspectors. The Board's role is restricted to adjudicating complaints of employer reprisals under section 50 of the Act. In Pamela Green v. General Motors of Canada Limited (Board File No. 0603-93-OH) the Board put it this way:

6. The Occupational Health and Safety Act creates a series of reciprocal rights and obligations for employers, employees and others. The objective is to promote a safe work environment; and, to that end, there is a web of regulations, restrictions, and reporting requirements.

7. However, the enforcement of the Occupational Health and Safety Act is not the primary responsibility of the Ontario Labour Relations Board (see generally Part VIII of the Act concerning "ENFORCEMENT"), nor does the Board have the panoply of powers to make the remedial directions that an Inspector can make (see section 54 and following).

8. The Board's role under the Occupational Health and Safety Act is a very limited one. The Board is not concerned with the enforcement of the Act, as such, but rather with situations where an employee claims that s/he has been penalized because s/he has sought enforcement of the Act. The focus of section 50 is the employment consequences of pursuing rights rather than the underlying situation in the workplace which the employee claims is hazardous. For example, if an employee is discharged for calling a Health and Safety Inspector, s/he may be reinstated as a result of a complaint to the Board. But the focus is the adverse employment consequence rather than the safety problem which prompted him/her to call the Inspector.

9. Section 91(4) of the Labour Relations Act and section 50(3) of the Occupational Health and Safety Act give the Board a discretion whether or not to inquire into a complaint of a violation of the Labour Relations Act or the Occupational Health and Safety Act. The Board is not obliged to undertake such enquiry (see the decision of the Divisional Court in Sheller Globe 83 CLLC ¶14,052). However, if the Board does undertake such inquiry, section 108(1) makes its decision final and binding.

10. As we have already mentioned, section 50 of the Occupational Health and Safety Act protects an employee from employer reprisals if that employee was seeking to exercise rights under the OHSA. If an employee believes that he has been the subject of such reprisal, he has two choices: he may either try to pursue the matter under any collective agreement that may be applicable, or he may make a complaint to the Labour Relations Board. The arbitration option depends upon union co-operation and the existence of a collective agreement permitting the challenge. An employee can come to the Ontario Labour Relations Board on his own.

11. If the employee opts to come to the Board under section 50 of the OHSA, the Board will decide whether or not to enquire into the complaint. If the Board does entertain the complaint, it will typically hold a hearing, and will decide:

(a) whether the employee has indeed been discharged, disciplined or otherwise penalized because he was exercising rights under the OHSA; and

(b) whether, in any event, the employer's behaviour was just and equitable in all the circumstances.

The hearing is conducted much like a case in civil court. The parties present or defend their own positions, and put before the Board whatever evidence or argument they think is appropriate.

9. It is important to emphasize that after a hearing, under section 50 the Board's task is two-fold:

(1) it must first decide whether the employer's conduct (a discharge for example) was improperly motivated and thus a breach of the OHSA; and

(2) then even if the employer decision was not improperly motivated and thus was not a breach of the OHSA, the Board may still decide, whether, in all the circumstances, the employer's response was reasonable.

In other words, even if the employer has not breached section 50(1) of the Act (i.e. has not acted "illegally") the Board may still decide that the employer response was an over reaction or was otherwise unfair. (See generally the decisions of the Board in: Commonwealth Construction Company, [1987] OLRB Rep. July 961; Everette Chapelle, [1990] OLRB Rep. Dec. 1238 and H.

H. Robertson Inc., [1991] OLRB Rep. April 492). Conversely, the Board may decide that the employer's actions were "just and reasonable" in all the circumstances.

10. With this overview, then, we return to the instant case.

II

11. Mr. Viveen was hired by National Steel Car in early April 1994. His employment was

terminated about six weeks later on May 13, 1994.

12. At the time of Mr. Viveen's termination he was still a probationary employee as defined in Article 7.02(a) of the collective agreement. That article reads as follows:

An employee having less that three (3) months of service shall be considered a probationary employee and will have no seniority rights ... if a probationary employee's service is terminated for reasons other than lack of work the company will so inform the employee at the time of termination. The union will not question the lay-off or dismissal of any probationary employees nor shall such lay-off or dismissal be the subject of a grievance".

[emphasis added]

As will be seen, the collective agreement says that the dismissal of a probationary employee cannot be questioned by the union or made the subject of a grievance.

13. The company took the position that Mr. Viveen had been terminated because of unauthorized absenteeism and related problems. Mr. Viveen contended that he was fired because he had acted in compliance with the Occupational Health and Safety Act or was seeking the enforcement of that Act. Accordingly, Mr. Viveen exercised the option mentioned above to complain to the Board under section 50 of the Occupational Health and Safety Act. The section 50 complaint (Board File No. 0764-94-OH) was filed on June 2,1994.

14. Mr. Viveen's complaint came on for hearing before a panel of the Board in July 1994.

The hearing consumed approximately two days, during which the Board heard the evidence of a

number of witnesses, including Mr. Viveen himself.

15. In a decision dated August 2, 1994 the Board reviewed the evidence that had been put before it and made various factual findings. Those findings need not be repeated here. It suffices to say that, when weighing the credibility of the various witnesses, the Board preferred the evidence of the employer's witnesses over that of Mr. Viveen. The Board did not accept Mr. Viveen's version of events. The Board found that evidence of other witnesses was more credible.

16. The Board noted that under section 50(1) of the OHSA, the onus is on the employer to establish that "anti-health and safety motivation" played no role whatsoever in its decision to terminate Mr. Viveen's employment. That is the first issue which the Board has to consider under section 50. As the Board put it:

"The issue under subsection 50(1) is not whether there was just cause for the termination, but whether in terminating the applicant's employment, the responding party had in mind any reason relating to the complainant's acting in compliance with, or his seeking enforcement of the Occupational Health and Safety Act or its Regulations

However, the Board also went on to say:

26. Whether or not the Board finds a violation of subsection 50(1), the Board still has the discretion under subsection 50(7) to substitute such other remedy as appears just and reasonable in all the circumstances. Subsection 50(7) has been interpreted so as not to discourage the raising of health and safety concerns. The Board has exercised its discretion to substitute a lesser penalty when the employee is acting out of a bona tide health and safety concern, and there is a connection between that concern and the actions of the employer, although the connection is not sufficient to constitute a violation of subsection 50(1). Conversely, the Board has declined to exercise its discretion under subsection 50(7) where there is no connection whatsoever between the health and safety concern expressed by the employee and the discipline imposed by the employer. (National Plastic Profiles Inc., supra, at para 46; see also Bilt-Rite Upholstering Co. Ltd. [1990] OLRB Rep July 755 at paragraph 47.)

This is the two-fold task that we have referred to above: is the employer's conduct a breach of section 50(1); and, even if the employer has not acted illegally, were its actions "reasonable" in the circumstances.

17. On the question of whether there had been a breach of the ONSA the Board reviewed the evidence and concluded:

The Board finds that Mr. Viveen was terminated because he was absent without just cause on five occasions during his first six weeks of employment, and not because he was acting in compliance with or sought the enforcement of the Occupational Health and Safety Act. Therefore, there is no violation of subsection 50(1) of the Occupational Health and Safety Act.

18. The Board was satisfied that Mr. Viveen had not been fired because he was exercising rights under or seeking to enforce the OHSA. The company had not acted unlawfully.

19. The Board then went on to consider whether it should interfere with the discharge - not because it was a breach of the OHSA, but rather because under section 50(7) the Board could review the situation and decide whether the termination of Mr. Viveen's employment was "unjust" or "unreasonable" in the circumstances. This is what the Board said:

20. Although the Board still has the discretion under subsection 50(7) to substitute the penalty imposed by the employer, we decline to do so. Although Mr. Viveen might reasonably have perceived a connection between his dismissal and his complaints about his safety equipment, we find on the evidence there was no connection between the two. In such circumstances, we would be reluctant to interfere with the employer's exercise of discretion in choosing the appropriate disciplinary measure. Further, the employer's disciplinary response to a probationary employee who has been absent without just cause five days in the first six weeks of employment, was not unreasonable.

[emphasis added]

20. In summary, then, the Board concluded:

(1) there was nothing illegal about Mr. Viveen's discharge; and

(2) there was nothing unreasonable or unfair about it either.

21. An application for reconsideration of the Board's decision was dismissed, with reasons, on September 8, 1994.

III

22. The present complaint was filed on October 18, 1994, names the trade union as a responding party, and mentions a number of provisions of the Labour Relations Act (sections 13, 67, 69, 70, 71, 72, 81.2, 82(1), 129 and 134). The material accompanying the complaint focuses once again upon Mr. Viveen's alleged safety concerns, the conversations with various union or employer officials during the six weeks that he was employed by the company, and his discharge on May 13, 1994.

23. Many of the statutory provisions referred to in the new complaint have no application to, or cannot be contravened by, a trade union. Others have no possible application to the events described by Mr. Viveen. In this regard, the allegations cannot make out an arguable case for a contravention of the Act, even if the assertions made in the complaint are true.

24. However, there is a more fundamental problem with Mr. Viveen's October complaint:

when one considers the remedies requested, it is apparent that the new complaint is an effort to re-litigate the propriety of a discharge which has already been found by the Board to be both "lawful" and "reasonable". Having lost his case against the employer, Mr. Viveen now seeks the same remedy (reinstatement, compensation etc.) by shifting the focus to the trade union and alleged breaches of the Labour Relations Act.

25. Insofar as the employer is concerned, it is no longer open to Mr. Viveen to challenge the propriety of his discharge. If there were arguments, legislative provisions, witnesses or evidence relevant to that matter it was incumbent upon Mr. Viveen to raise them in conjunction with the first complaint. To put the matter in layman's terms: a complainant cannot litigate his case piece meal.

26. In the course of the first complaint, it was open to Mr. Viveen to argue these matters either as part of his challenge to his termination, or in conjunction with the very general remedial discretion that the Board has under section 50(7) of the Act. However, he did not do that, and in our view, he cannot do so now. In our view, the employer should not be required to defend itself again. As regards the employer, the circumstances of Mr. Viveen's discharge have been fully and finally adjudicated and found to be reasonable. To put the matter another way: the employer's decision to terminate Mr. Viveen's employment was not illegal and was not unreasonable in the circumstances.

27. Given that finding is there any aspect of the new complaint which would now warrant further inquiry or justify a further hearing into the circumstances preceding or leading to Mr. Viveen's termination? In our view the answer is no.

28. When Mr. Viveen's latest allegations are reviewed as a whole, it is evident that most of them involve his continuing contention that health and safety issues were the primary focus of his concerns on the job and the primary reason for his discharge. But these matters have already been fully litigated, and should not be reviewed again. Nor is it this Board's role to interpret and enforce the Occupational Health and Safety Act except to the limited degree necessary under section 50 - a task which it has already addressed. For as we have already noted, the Board has no general jurisdiction to enforce the provisions or regulations of the Occupational Health and Safety Act. Its role is confined to adjudicating reprisal complaints under section 50 - as it has already done in this case.

29. Labour Relations Act sections 67, 70, 81.2, 82(1), 13, 71, 72, 134, and 129 mentioned by Mr. Viveen in his complaint have no application to any of the facts asserted and provide no arguable foundation for the complaint. Section 69 might conceivably apply to a trade union in appropriate circumstances, however, the circumstances reviewed by Mr. Viveen (read together with the facts found by the Board in the earlier case) do not make out an arguable case that the union has acted in a manner that is "arbitrary", "discriminatory" or "in bad faith".

30. However, even if there might be some arguable case with respect to section 69, we can discern no labour relations purpose for any inquiry at this stage.

31. It is extremely doubtful whether Mr. Viveen ever had any rights under the collective agreement which the union might have pursued, because the rights of probationary employees are extremely limited. However, Mr. Viveen did not pursue that option, and insofar as rights under the OHSA are concerned, Mr. Viveen has already taken that matter to the Board on his own, as he was entitled to do. But his complaint was rejected. Any rights to employment or continuing employment or compensation for loss of employment have been fully and finally determined when the Board concluded that his discharge was both "legal" and ~'not unreasonable". The Board found that he was not entitled to reinstatement or compensation from the employer, and the union was clearly not the cause of his discharge. And that being so, it is difficult to see what other remedy might be available from the union or would warrant relitigation of those events, even if the Board were disposed to entertain such application.

32. In our view, no useful purpose would be served by any further inquiry into this complaint.

33. Accordingly, pursuant to Rule 24 and the Board's discretion under section 91(4) of the Act, this complaint is dismissed.