[1998] OLRB REP. NOVEMBER/DECEMBER 967
3025-98-HS The Great Atlantic & Pacific Company of Canada Limited, Applicant v. United Food & Commercial Workers International Union, Local 175 and 633, and Ministry of Labour, Responding Parties
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; December 23, 1998
This is an application filed with the Board for an order suspending an order made by an inspector, in accordance with section 6 1(7) of the Occupational Health w4d Safely Act, R.S.O. 1990, c. 0.1, as amended.
By a decision dated December 3, 1998, the Board directed that submissions be filed in respect of this application. Although the Ministry of Labour has filed its submissions, no other party, including the applicant, has done so.
The factors to be considered when assessing whether a suspension order is appropriate are described in the decision of Adjudicator Herman in General Motors of Canada Limited (Board File No. 3666-96-HS, June 2, 1997). These three factors have generally been considered by adjudicators when determining whether a suspension of an order is warranted in the circumstances:
(a) whether the suspension of the order would endanger worker safety;
(b) the prejudice to the parties if the order is or is not suspended; and,
(c) whether there is a strong prima facie case for a successful appeal of the order.
- In this case the applicant is seeking the suspension of an order of an inspector which reads as follows:
Pursuant to section 82 of 0. Reg. 851/90, the Employer is ordered to ensure that workers who operate powered and manual material handling equipment at this workplace are protected by the wearing of foot protection appropriate in the circumstances.
The applicant claims in its initial letter seeking this suspension that no hazard exists, that the store has not experienced an accident or injury to any employees' toes, that no employee has expressed a concern in this regard, that the company's footwear requirements are suitable, and that there have been only nine toe claims in over 182 stores over the last ten years. In the applicant's opinion, protective footwear would not prevent injury in any event, but would create a hazard. It is unclear what the applicant's assertion in this regard is based upon. The applicant claims that it has a comprehensive training program to eliminate any perceived hazard, and that it has made a number of (unspecified) equipment changes at its retail outlets to eliminate any perceived hazard.
As noted earlier, the applicant did not file any submissions in response to the Board's direction of December 3, 1998. The Ministry has noted that the applicant's initial submission is not sufficiently detailed to allow it to properly respond. Nonetheless, the Ministry has relied upon specific facts in opposing the request for a suspension order. It has indicated that it would endanger worker safety to suspend the order as employees in this new 24 hour a day supermarket store are moving goods on wooden skids around the store using battery powered or hand-pumped, hand-steered lifting devices, and are not wearing any protective footwear. The inspector's order reflects the view that workers are being exposed to foot injury while engaged in this work as the potential hazards include the accidental lowering of a skid onto a worker's foot, protruding nails from the wooden skids, and the tipping of products on the skid due to unbalanced loading.
The applicant has indicated no prejudice to it if the workers are required to wear protective footwear when moving products around the store using the lifting devices.
The Board is of the view that a certain degree of deference ought to be given to an inspector's order, and in the absence of a persuasive reason to interfere with the order pending a hearing on the merits of an appeal, the original order ought not to be suspended. Having reviewed the submissions of the parties, the Board is of the view that there is insufficient reason to suspend the inspector's order pending the outcome of this appeal. There appears to be a hazard, there is nothing before me to indicate that the employees in this workplace have been given adequate training to avoid the hazard, it is unclear whether any alternate measures have been taken to protect workers against the hazard, and the employer applicant has failed to indicate any prejudice which would accrue to it if the order is left intact until the appeal is heard. Further, given the dearth of the applicant's submissions, I am unable to determine whether there is a strong prima facie case for a successful appeal.
Although the applicant has relied upon the decision of the Board in Board File No. 2118-98-HS (The Great Atlantic & Pacific Company of Canada Limited, Vice-Chair Shouldice, November 24, 1998), that case is of no assistance as the issue addressed by the Board therein was quite different from what is before me.
Accordingly, I decline to suspend Order No. 2 in the Inspector's Field Visit Report No.
778923 dated November 30, 1998.