[1998] OLRB REP. MAY/JUNE 405

3269-97-OH Ali Abdulkadir, Applicant v. Dough Delight Inc., Responding Party v. Bakery, Confectionery and Tobacco Workers' International Union, Local 181, Interve­nor

BEFORE: Robert Herman, Alternate Chair.

DECISION OF THE BOARD; June 18, 1998

1. This is an application filed pursuant to the provisions of section 50 of the Occupational Health and Safety Act (the "OHSA"). This decision considers whether the application ought to be dismissed without a hearing.

2. The provisions of subsections 50(1), (2), (3) and (7) of that Act read as follows:

3. (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 Ontano Labour Relations Board may inquire into any complaint filed under subsection (2), and section 9 t 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.

(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.

3. Under this Act, a worker who asserts that he or she has acted in compliance with the OHSA or the regulations or an order made thereunder, or who has sought enforcement of that Act or the regulations made thereunder, or who has given evidence in a proceeding in respect of the enforcement of that Act or the regulations or in an inquest under the Coroners Act can complain to the Ontario Labour Relations Board. However, the statute does not create a general unrestricted right to complain to the Board where one asserts injury or threat to health in a work setting. Nor does section 50 entitle the Board to consider whether there have been breaches of other sections of the OUSA. A complaint must be founded upon an allegation that an employer, or a person acting on behalf of the employer, has in some manner imposed a penalty upon the applicant or intimated or coerced that worker because the worker has been acting in the prescribed manner.

4. In light of the ambit of the Board's jurisdiction, I turn now to consider the facts, as pleaded, or as otherwise agreed to in the filed material.

5. The applicant, Mr. Abdulkadir, began working for the responding party, Dough Delight Limited ("Dough Delight"), around the 27th day of June, 1990. By April 15, 1997, his last day of work, he was working as a Mixer Lead Hand on the day shift.

6. The next day, April 16, 1997, he phoned the company sometime after midnight and spoke to his supervisor, advising her that he would be off work for two weeks.

7. While off work, on April 20, 1997, the applicant was in a car accident. The next day, April 21, 1997, Mr. Abdulkadir called his supervisor again, informing her of the car accident and advising her that he was not aware of when he would be well enough to return to work. Approximately one week later, the applicant attended at the company plant, to pick up his paycheque. While there, he advised one of his supervisors about his physical condition, and the fact that he was still unable to return to work.

8. During the first week of May, 1997, the applicant forwarded an accident report, prepared by the police, to the company's Human Resources Department, and at the same time requested from his employer his vacation pay and a claim form for short term disability benefits. Three days after requesting this claim form, Mr. Abdulkadir submitted the completed form to the company. At the same time that he submitted this benefits claim form, he was advised by the Payroll Administrator for the company that she understood that the applicant's employment had already been terminated by the company, prior to when he had come in earlier and picked up the claims form. He was advised to speak to someone in the Human Resources Department.

9. The next day, the applicant returned to the plant and spoke to someone in the Human Resources Department, when he was again advised that he had already been terminated.

10. By letter from the company dated May 15, 1997, the applicant was advised that he would be deemed to have abandoned his position unless the company heard from him by May 20, 1997. However, this letter was hand-delivered to the applicant on May 23, 1997, and not otherwise received by Mr. Abdulkadir prior to that date.

11. After he received this letter, and on the same day, the applicant went to speak to his union, to advise it that he had been terminated. The union told the applicant that it would file a grievance on his behalf, challenging his termination. Also on May 23rd, the company's Payroll Administrator certified to the company insurer that short term disability compensation was available to the applicant, because of his car accident, as well as income continuation benefits, and some medical rehabilitation or attendant care benefits. The Payroll Administrator also advised the insurer that the applicant had not as yet returned to work (the application as filed asserted that the Payroll Administrator advised the insurer that the applicant had returned to work by then (see paragraph 14 of Schedule A to the Application), but in the subsequently filed submissions of March 25, 1998, at paragraph 9, the assertion is that the insurer was advised that the applicant had not yet returned to work).

12. Some time after June 3, 1997 the applicant was sent his Employment Canada Record of Employment, which stated that the applicant had failed to report to work within three days, he had failed to follow the call-in procedure, and that he was deemed to have abandoned his position. The Record of Employment also indicated that his final pay period ended May 31, 1997.

13. The union subsequently filed a grievance, alleging the unjust dismissal of the applicant. The company responded, denying the grievance. On September 16, 1997, a grievance meeting was held, and on September 23, 1997, the responding company offered to rehire the applicant to the same position, but without seniority.

14. The applicant rejected this offer, and the company subsequently offered the applicant a different position, as a production worker rather than a mixer, but without loss of seniority. The applicant also rejected this offer.

15. The applicant disputes that he did not follow the company's call-in procedures, that he did not report as required on April 16, 1997, or that he at any time abandoned his position with the company. He asserts that the decision to terminate him was taken after the applicant had advised the company that he had been in an accident and would be seeking short term disability benefits. Further, he asserts, because of the nature of the injury he suffered, it would have been and was apparent to the employer that the applicant would have to be accommodated in his employment, upon his return. In this respect, the applicant asserts that the company terminated the applicant in reprisal for his efforts to protect his health by seeking income replacement through short term disability benefits, rather than attend at work while still injured, with the risk that he might aggravate his health, and in reprisal for the anticipated or expected request that the applicant would make for accommodation at work, once he was well enough to return to work.

16. More specifically, the applicant asserts that sections 25, 26, 27, and 28 of the OHSA are related to the application. As set out in the application, he asserts that the following reprisal conduct was engaged in by employer:

(a) the employer pretended that the applicant had not advised it of his absence from work, as a result of the injury, even though the applicant clearly had done so;

(b) the employer refused to give the applicant his vacation pay when he was entitled to receive it;

(c) the employer fired the applicant prior to the applicant's ability to file his short term disability claim, and refused to forward the appropriate disability forms from the applicant to the insurer;

(d) through subterfuge and deceit, the employer intentionally gave the applicant on May 23, 1997 a letter requiring him to return to work on May 20, 1997, SO that it would have been impossible for the applicant to fulfill that condition;

(e) the employer wilfully frustrated the applicant's ability to obtain continuation benefits, medical rehabilitation, and attendant care benefits through the short term disability insurers;

(f) the employer falsified the Employment Canada Record of Employment, insofar as it alleged that the applicant had failed to report to work within three days and failed to follow the call-in procedure, when the employer knew that the applicant had done so;

(g) the employer attempted to penalize the applicant by seeking to rehire him only without seniority, after it had already wrongly dismissed him in violation of the collective agreement;

(h) the employer attempted to penalize the applicant by offering to accept him as a production worker rather than in his former position, as a mixer.

17. Finally, the applicant alleges that the above noted conduct was in violation of section 50 of the OHSA "and resulted from the Applicant's efforts to seek to protect his health by not returning to work while he was unhealthy and unable to do the work and when to have done so would have constituted a hazard to his health and safety as well as by his efforts to seek benefits generally available to disabled employees who were for health reasons unable to return to work. The employer throughout was aware of the actual events set forth in this application as related by the applicant with respect to his dealings with the company but chose to either ignore or misrepresent them to the worker and to his union in its dealings concerning him for purposes of reprisal and financial gain without due regard to the health and safety of the employee and a breach of its duty to take all reasonable measures necessary in order to secure the safety of the workplace and the health of the employee".

18. In its Response, the responding employer asked that the application be dismissed on the grounds that it was untimely, that it did not disclose a prima facie case, that it was more appropriately dealt with under other legislation, and because there had been no violation of the OHSA. The company also asked that an order be made against the applicant and/or his (legal agent) for solicitor and client costs, as the application was frivolous, vexatious, and made in bad faith.

19. The Board then issued a decision providing further opportunity to the parties to file written submissions on the issues of whether there was a prima facie case, and whether the Board ought to exercise its discretion and decline to inquire further. In response to this decision, the applicant further asserted that the company had a policy of terminating employees who were ill or who had suffered accidents because of the added financial liability that such employees would represent. The applicant asserted that such policy constituted an effort to intimidate and punish the applicant for refusing to endanger his health and safety by returning to work prematurely.

20. The Board turns now to consider whether the application as filed discloses a prima facie case, and even if it does, whether it is appropriate in the exercise of the Board's discretion to decline to inquire further into the complaint.

21. There have in recent years been an increasing number of complaints filed which allege breaches of section 50(1) of the OHSA, which are based upon factual assertions that do not allege mechanical or physical dangers in the workplace. These complaints have derived from a variety of contexts where there exist legitimate workplace concerns, such as sexual harassment (Meridian Magne­sium Products Limited, [1996] OLRB Rep. Dec. 964), racial discrimination (Toronto Board of Educa­tion, [1997] OLRB Rep. May 541), stress and anxiety (Corporation of the City of Scarborough, Board File No. 0656-97-OH, December 15, 1997, unreported) and so on.

22. The Board now has a developing jurisprudence which has addressed some of the issues that have arisen in those applications, some of which also arise here. In Meridian Magnesium Products (above), the Chair of the Board at some considerable length considered the appropriateness of the Board inquiring into the complaint in that matter, which was a complaint at its core about sexual harassment in the workplace, and he considered whether the Board ought to exercise its discretion to not inquire into the complaint. As the Board there wrote:

23. The Human Rights Code creates a framework of rights and freedoms of wide-ranging application and quasi-constitutional status (see Institutional Corporation of British Columbia v. Heerspink, [1982] 2 5CR. 145; Zurich Insurance Co. v. Ontario Human Rights Commission, [1992] 2 5CR. 145; Zurich Insurance Co. v. Ontario Human Rights Commission, 1992 CanLII 67 (SCC), [1992] 2 S.C.R. 321; and Dickason v. University of Alberta, 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 1103). Its primary thrust is the elimination of discrimination on a number of stipulated grounds (race, creed, colour, ethnic origin, age, sex, marital status, etc.). However, it is important to note that the Code is also an employment statute, regulating various aspects of the employer-employee relationship - just like the Labour Relations Act, the Occupational Health and Safety Act, the Employment Standards Act, the Workers' Compen­sation Act, etc. The Code is part of the fabric of employment law, and among its elements, are several provisions prohibiting gender discrimination and harassment in the workplace. Sections 5 and 7 of the Code read, in part, as follows:

24. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizen­ship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

25. (2) Every person who is an,employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

74. Sections 8 and 9 of the Code prohibit the infringement of these enumerated rights, as well as any "reprisals" because someone has sought to enforce them:

75. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

76. No person shall infringe or do, directly or indirectly anything that infringes a right under this Parr.

77. The Code protects an individual from harassment and discrimination in employment on any of the prohibited grounds. The Code also protects an individual from reprisals for "claiming" or seeking to enforce the rights that are spelled out in the Code. "Harassment" and "gender discrimina­tion" receive specific, but separate legislative treatment. So does the question of "reprisals". And to complete the picture, section 11 of the Code addresses what might be described as "constructive" discrimination - features of the work relationship which are not intended to discriminate, but which nevertheless have an exclusionary or discriminatory impact.

78. The "sexual harassment" provision [now section 7 of the Code] was added to the Code in 198t -presumably because there was some question about the ambit of the existing gender discrimination provisions, or because it was thought that sexual harassment required separate legislative consider­ation, or both. But in any event, there is really no doubt that gender discrimination, sexual harassment, and reprisals are all dealt with quite explicitly (albeit separately) in the Ontario Human Rights Code. Accordingly, whether or not Ms. Musty has a claim under the OHSA, it is clear that she can complain under the Code about gender discrimination and harassment, and she can complain as well, if she has been the victim of reprisals for asserting rights protected by the Code. The substantive violation and the reprisal each provide an independent ground for complaint.

79. The Occupational Health and Safety Act has no similar provisions dealing with harassment or discrimination. If sexual harassment and gender discrimination are covered by the OHSA at all, it is because of general language involving workplace hazards, rather than specific provisions dealing with those issues. Nor is there anything in the OHSA that deals specifically with workplace stress, threats to mental health, mental disability or mental distress - all of which are part and parcel of Ms. Musty's complaint.

80. As its title indicates, the purpose of the Occupational Health and Safety Act is to promote the health and safety of workers. It does that by prescribing safety standards (often by regulation), and by establishing mechanisms to identify and rectify situations that may be a source of danger.

81. The legislative antecedents of the OHSA have been canvassed in Inco Metals Co., [1980] OLRB Rep. July 981, and will not be repeated here. It suffices to say that the OHSA creates new rights, and imposes important responsibilities, on everyone in the workplace. The Act creates what might be described as a system of "internal responsibility", that is supplemented by prescribed standards, by external inspection, by direct enforcement of statutory requirements, by quasi-criminal sanctions and by legislated protection from reprisal for seeking to enforce statutory rights. It envisages a regulatory role for the Ministry of Labour, and, to a lesser degree, the Ontario Labour Relations Board.\

82. The administration of the Code is given over to the Ontario Human Rights Commission, whose functions are spelled out in section 29:

83. It is the function of the Commission,

(a) to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;

(b) to promote an understanding and acceptance of and compliance with this Act;

(f) to inquire into incidents of and conditions leading or tending to lead to tension or conflict based upon identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict;

(g) to initiate investigations into problems based upon identification by a prohib­ited ground of discrimination that may arise in a community, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems;

(h) to promote, assist and encourage public, municipal or private agencies, organi­zations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination;

(i) to enforce this Act and orders of the board of inquiry;

As will be seen, the Commission's role under the Code is much broader than merely enforcing the Code or rectifying alleged violations. It has a more panoramic mandate, that includes investigations and programs to eliminate the sources of discrimination.

93. The Code envisages that the Commission will take a more holistic view - which does not exclude litigation of specific complaints, but may not be limited to that approach either, and could, for example, include mediation, education, and training initiatives. The Commission has a public responsibility to protect and promote the rights enumerated in the Code. And unlike this Board under the OHSA, the Code begins with a broad statement of statutory purpose, which helps shape the interpretation of that statute, as well as the role of the Commission.

94. However, the Code also includes a mechanism for enforcement through litigation of specific complaints, and provides for quasi-criminal penalties as well.

95. Where someone believes that a right under the Code has been infringed, s/he may file a complaint with the Commission (which may also initiate a complaint on its own motion, or upon the request of any person). Upon receipt of that complaint, the Commission is obliged to investigate and endeavour to effect a settlement. The Commission has wide powers of investigation, and the obstruction of such investigation is itself an offence under the Code. The Commission carries the complaint on the complainant's behalf, and has to decide what mix of litigation or other responses (or proposed settlement terms) are consistent with the public and private interests involved.

96. However, in keeping with the specific treatment and special character of harassment cases, the Code specifically contemplates additional remedies for harassment situations, as well as special obligations for those in a position to make sure that the harassment is not repeated. Indeed, a board of inquiry has a continuing mandate to monitor the situation. Section 41(2) of the Code reads this way:

97. (2) Where the board of inquiry makes a finding under subsection (1) that a right is infringed on the ground of harassment under subsection 2(2) or subsection 5(2) or conduct under section 7, and the board finds that a person who is a party to the proceeding,

(a) knew or was in possession of knowledge from which the person ought to have known of the infringement; and

(b) had the authority by reasonably available means to penalize or prevent the conduct and failed to use it, the board shall remain seized of the matter and upon complaint of a continuation or repetition of the infringement of the right the Commission may investigate the complaint and, subject to subsection 36(2), request the board to re-convene and if the board finds that a person who is a party to the proceeding,

(c) knew or was in possession of knowledge from which the person ought to have known of the repetition of infringement; and

(d) had the authority by reasonably available means to penalize or prevent the continuation or repetition of the conduct and failed to use it, the board may make an order requiring the person to take whatever sanctions or steps are reasonably available to prevent any further continuation or repetition of the infringement of the right.

(emphasis added)

The term "sanctions" in item (d) suggests that a board of inquiry has the power to require an employer to punish offenders - who, of course, are parties to the proceeding, in their own right, under section 39(2).

23. After sketching out the differences between the two pieces of legislation in question, the Board continued to express the view that matters of the nature there in question were more appropriately dealt with outside the confines of the OHSA:

24. I have been somewhat tentative in the preceding paragraphs, because although all of these propositions are certainly "arguable", sexual harassment does not fit very well into the OHSA scheme - quite apart from the potential overlap with the investigatory and enforcement processes set out in the Code. Nor is there much reason to believe that issues of race, creed, colour (etc.) -which admittedly can cause tension or distress in the workplace - were ever intended to be dealt with under the OHSA (in addition to, or instead of the Ontario Human Rights Code). In fact, the specificity of the Code, the specific addition of harassment in 1981, and the specific remedial prescriptions for harassment cases, all suggest the opposite conclusion.

25. Sexual (or racial) harassment in the workplace may fit a literal or even a purposive reading of the term "hazard" in the OHSA, but the OHSA does not deal very clearly with problems of this kind, and the existence of the very specific provisions in the Code, suggests that the OHSA was not intended to do so. For as I have already noted, the Code is also an employment statute that regulates behaviour in the workplace, and prohibits both harassment and reprisals. Moreover, the powers of the Commission and a board of inquiry permit a focused or nuanced response to these specifically identified workplace problems. This Board has no monopoly in the area of employment regulation, or even in the area of employment reprisals.

26. I shall have more to say about that below. At this point, I merely note that within the OHSA itself, the emphasis seems to be on physical threats to a worker's well-being, which may suggest that open-ended words like "health", "safety" or "hazard" should be construed in that light. For as the Court observed in Colquhoun v. Brooks (1889), 14A.C. 493:

It is beyond dispute ... that we are entitled and indeed bound when constructing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the Legislature and which may serve to show that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.

From this perspective, it might be said that general words like "hazard", "health", "danger", "precaution" should be interpreted in light of the way health and safety problems are considered elsewhere in the statute, and are limited to physical risks or hazards.

128. The provisions of the OHSA focus primarily - if not exclusively - on physical hazards in the workplace: on machines, devices, things, equipment, protective devices, building structures, dangerous biological or physical agents, and so on. (See, for example, sections 8, 9, and 25, and the powers of an inspector under sections 54-60). Even the right to refuse unsafe work under section 43 focuses on the "equipment, machine, device or thing the worker is to use" or the "physical condition of the workplace". The physical element is either implicit in the hazard specifically identified, or has been added by the Legislature, as in section 43 which gives an employee the right to refuse to work when the situation is unsafe. If section 43 had been intended to cover any condition in the workplace, the word "physical" would not have been necessary.

129. Not only does the OHSA appear to be concerned with physical threats of one kind or another, but the provisions of the OHSA do not seem to focus at all on "dangerous people", except in relation to physical activities or the dangerous operation of equipment. Thus, section 28(2) of the OHSA provides:

130. (2) No worker shall,

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself herself or any other worker; or

(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

Even Barmaid's Arms, [1995] OLRB Rep. March 229, a case upon which the complainant relies, involved a physical threat to the employee in question.

156. The modern workplace is now subject to an array of arguably overlapping statutes, which, in turn, can foster multiple litigation in different forums arising out of the same basic work setting. The instant case is a classic example, involving (among other things) a request for compensation in the Courts, and broadly similar or related relief under three separate statutes (Workers' Compensa­tion, the OHSA, the Code) administered by several different statutory agencies and tribunals (the WCB and WCAT, the Human Rights Commission and a board of enquiry, and the Ontario Labour Relations Board). And if the OHSA applies generally, as Ms. Musty says it does, one could add inspectors from the Ministry of Labour and the adjudication/appeal procedures under the OHSA as well.

157. This checkerboard of statutory rights and remedies is not only a recipe for inconsistent results as each agency or tribunal sifts through the facts from its own perspective, but in the circumstances, I do not think that it is inappropriate to consider the public and private costs of an exercise in which several statutory agencies are all being called upon to look at, and potentially litigate about, the same behaviour. On the contrary, it appears to me to be entirely appropriate that before plunging ahead, one tribunal should take into account what another tribunal is doing or was designed to do.

158. I do not think that it is necessary to multiply the examples. The fact is, what this case is really about is sexual harassment in the workplace and what is necessary to remedy that situation -both for Ms. Musty herself, and for other employees working in the allegedly "poisoned work environment". This is not an area in which this Board can claim any specific expertise, and it is debatable whether there is a foundation for intervention under the OHSA - and then only if the circumstances fit the narrow, no-reprisal provisions of section 50. And if a breach of section 50 were established, there is no reason to believe that this Board's remedial authority is as broad as that of the Commission or a board of inquiry - or that this Board could even impose the range of remedies that Meridian has already agreed to. This Board has never undertaken its own investiga­tions, organized or imposed anti-harassment programs, supervised a workplace on a continuous basis, inserted a 'just cause" clause into a collective agreement or contract of employment, invested a health and safety committee with quasi-judicial powers to adjudicate discrimination complaints, ordered an employer to punish a supervisor, or even given significant damages for mental distress.

159. Whether or not these particular remedies are available under the Code in this case, I think that it is clear that the Commission and/or a board of inquiry are better situated to deal with these problems than this Board is under section 50 of the Occupational Health and Safety Act. Indeed, since Meridian says that it is trying to get the grievor back to work, and the grievor says that it is first necessary to rectify the poisoned work environment, the central issue in this case is not reprisal or reinstatement but rather remedying harassment and gender discrimination - something that falls squarely within the central jurisdiction of the Commission under the Code. The situation in this case is not unlike that before the Board in David Gazit v. Ontario Public Service Employees' Union and George Brown College, (Board Files 0616-95-U and 0617-95-U), where the Board declined to enquire into the complaint and observed:

….All of Mr. Gazit's concerns are, at root, his assertion that he has been subjected to an ongoing pattern of discriminatory treatment by reason of his age, creed, and sex. His concern about a "poisoned work environment" all stem for what he has consistently asserted are human rights violations.... Even assuming that the withdrawal of [the Human Rights complaints] might be a factor in my determination, the complaints were extant when the issue was put before me. Mr. Gazit is forum shopping. It is inappropriate, and an enormous waste of public and private resources. All of the concerns that Mr. Gazit has raised are before the Human Rights Commission. The remedies he seeks area also more within the ambit of the Commission's usual and often broader, remedial work.

24. In Toronto Board of Education (above), although the Board there dealt with a different issue, a complaint of alleged harassment or discrimination on the basis of race, the Board came to a similar conclusion. As the Board wrote:

25. The Board's decisions in both Meridian and Lyndhurst stand for the proposition that sexual harassment as hazard or reprisal conduct is arguably within the Board's jurisdiction when forming the basis of an application pursuant to section 50(2) of the Act. In Meridian, the parties raised the issue of deferring to the Commission and the Board decided that if the real issue is one of human rights, then there should be deferral. The majority decision in Lyndhurst does not address this point.

26. In our view, the reasoning in Meridian is incontrovertible. Unlike the respondent, we do not read Lyndhurst as being inconsistent with Meridian.

27. Having regard to the provisions of the Code referred to above, the analysis in Meridian in our view applies equally to applications under section 50(2) of the OHSA which deal with issues of harassment and discrimination on the basis of race. There can be little doubt that the Legislature clearly intended the Commission to deal with complaints of harassment and discrimination in the workplace on the basis of race, including reprisal complaints.

Characterization

58. In Meridian, the question posed was "what is this case really about?". We now deal with how this matter should be characterized.

59. As in Meridian Magnesuim Products (above), the Board in that case declined to inquire further into the complaint.

60. In the Corporation of the City of Scarborough (above), the Board wrote as follows:

61. However, I am not satisfied that the complaint makes out a prima facie case of a breach of subsection 50(1) of the Occupational Health and Safety Act.

62. The applicant did not specifically identify any health and safety concerns, or give any indication that she was seeking to enforce her rights under the Occupational Health and Safety Act or Regulations until she filed this complaint. Nor did she conduct herself in a way such that it could be said that she was in fact exercising such rights even though she did not expressly identify them or perhaps even know of such rights.

63. As Mr. Kopyto points Out, a worker need not utter any particular words or take any particular steps in order to be entitled to the protection of the Act or Regulations. Indeed, a worker need not even be aware of the Act or Regulations in order to obtain their protection. However, a worker must allege a prima facie connection between conduct which can reasonably be said to constitute acting in compliance with or seeking enforcement of the Act or Regulations (whether or not she was aware that was what she was doing), and employer conduct which she alleges was and could reasonably be said to constitute a reprisal for doing so. That is, a worker must in fact be exercising a right under the Occupational Health and Safety Act (whether or not she knows that is what she is doing), and an employer must have in effect penalized her for doing so. The worker must therefore do something to indicate the existence of a health and safety problem, even if she does not realize that what she is doing is invoking the Act. A worker who "suffers in silence" will have difficulty making a sustainable assertion that something an employer did was in response to an attempt to comply with or seek enforcement of the Occupational Health and Safety Act.

64. It has been suggested that in order for a worker to obtain the protection of section 50, it is sufficient for a worker to have an honest reasonable belief that s/he is acting in compliance with or exercising a right under the Act or regulations. That is the case, but only to a point.

65. For example, subsection 43(3) of the Act provides that a worker may refuse to work where he or she has reason to believe that working would endanger him or herself, or another worker. If a worker has an honest and reasonable belief in this respect, subsection 50(1) protects him/her from employer reprisals for exercising his/her subsection 43(3) rights.

66. However, subsection 50(1) does not contain language analogous to subsection 43(3). It protects workers who have acted in compliance with or sought enforcement of the Act or regulations. This includes workers who refuse to work because they have "reason to believe" their health and safety or that of other workers was in jeopardy. It does not include workers who believe, however honestly and reasonably, that they are acting in compliance with (or perhaps seeking enforcement of) the Act or regulations when that is not in fact the case; as, for example in the case of a worker who acts in a manner which s/he honestly believes is in compliance with the Act but that is not in fact the case. A worker who acts in ignorance of the Act or regulations is no more entitled to the protection of subsection 50(1) than an employer is entitled to plead ignorance of the Act or regulations in defence of a complaint under section 50. This sort of honest but mistaken belief of a worker may be relevant, if at all, to the Board's considerations under subsection 50(7) (a provision which has no application unless there is first a prima facie case of a breach of ss. 50(1)).

67. It is important to understand the Board's role under the Occupational Health and Safety Act, and, more specifically, the jurisdiction which the Board has under section 50 of the Act. This is a jurisdiction which has to be placed and understood in context.

68. In the recent case of Meridian Magnesium Products Limited, [1996] OLRB Rep. Nov/Dec. 964 (at paragraphs 73 to 161), the Chair of the Board undertook an analysis of the Board's jurisdiction under the Occupational Health and Safety Act, and specifically how that jurisdiction intersects with the Ontario Human Rights Code and the rights and enforcement mechanism under that legislation. I respectfully agree with the analysis in Meridian, supra.

69. As the Board observed in Meridian, supra, the legislative fabric of employment law in Ontario consists of numerous statutes. The Occupational Health and Safety Act is one of those statutes. In section 50 of the Occupational Health and Safety Act, the Legislature has chosen to make use of the expertise the Board has developed from dealing with unfair labour practice complaints under its home statute, the Labour Relations Act, 1995, by giving the Board a "reprisal jurisdiction"; that is, the authority to deal with complaints by workers that they have suffered reprisals from employers for acting in compliance with or seeking enforcement of the Occupational Health and Safety Act or Regulations. (This is similar to the reprisal jurisdiction the Board has under other non-labour relations statutes, such as the Environmental Protection Act and the Smoking in the Workplace Act).

70. The statutes which appear to bear most directly upon the applicant's allegations in this case are the Occupational Health and Safety Act, the Workers' Compensation Act, and the Human Rights Code. These statutes form somewhat of a health and safety patchwork within the legislative fabric. But some order can be discerned.

71. The only jurisdiction the Board as such currently has under section 50 of the Occupational Health and Safety Act, is to adjudicate complaints that an employer (or someone acting on an employer's behalf) has breached subsection 50(1) of the Act. That is, the Board is limited to adjudicating complaints that a worker has suffered reprisals because s/he has acted in compliance with or sought enforcement of the Act or Regulations. Section 50 does not give the Board a plenary jurisdiction under the Occupational Health and Safety Act. More specifically, section 50 does not give the Board a general jurisdiction to investigate or inquire into work refusals, allegations that a workplace is unsafe, or that sections of the Act other than section 50, or the Regulations, have been breached.

72. Further, the Board has no jurisdiction to investigate or inquire into claims that a worker has suffered a work related injury or disability. The Workers' Compensation Board and the Workers' Compensation Appeals Tribunal currently exercise that jurisdiction under the Workers' Compensa­tion Act (a statute which is being replaced by new legislation in January, 1998).

73. The workers' compensation scheme in Ontario is mandatory for the majority of employers and workers in the Province, whether or not the workplace is unionized. It is intended to benefit both employers and workers by providing a no-fault income replacement insurance plan which largely (but not entirely) replaces and takes away the right of workers who suffer work-related injuries or disabilities to pursue traditional common law remedies in Court. The extent to which the workers' compensation scheme occupies the field suggests that no other forum is appropriate in that respect, except where legislation specifically so provides.

74. Similarly, the Board has no jurisdiction under the Ontario Human Rights Code (except arguably when the Board sits as an arbitrator in the construction industry under section 133 of the Labour Relations Act, 1995, when considering section 15 of the Labour Relations Act, 1995, and as a law of general application). The Ontario Human Rights Commission and the Boards of Inquiry to which the Commission refers complaints under section 36(1) of the Human Rights Code investigate and adjudicate complaints that the Code has been violated. (Labour relations boards of arbitration also exercise a Human Rights Code jurisdiction to the extent that grievances filed under a collective agreement raise an issue concerning the interpretation and application of the Code.)

75. In Meridian, supra, the Board described how the Code operates and what it covers. I find it unnecessary to repeat or set out that analysis. However, it does bear repeating that the Code contains provisions which deal extensively with employment and workplace issues. The Code specifically prohibits discrimination with respect to employment (subsection 5(1), supplemented by other more general provisions such as sections 9, 10, 11, 17 and 25), specifically prohibits harassment in employment (subsection 5(2)), and even more specifically prohibits sexual harassment in the workplace (subsections 7(2) and (3)). The Code also contains a reprisal protection (in section 8). But this reprisal jurisdiction is retained by the Commission and human rights Boards of Inquiry; it has not been given to the Board.

76. Stress and other non-physical symptoms may, but do not necessarily, suggest that a workplace hazard is present. Workplace hazards may be physical or non-physical, but it is apparent that the Occupational Health and Safety Act and Regulations are primarily directed at physical hazards and the physical effects of workplace hazards. The structure of the Occupational Health and Safety Act, and the investigation and enforcement mechanisms created by it are poorly suited to dealing with non-physical hazards or effects. The Workers' Compensation Act is specifically structured to deal with negative health and safety consequences related to the workplace; namely, with work related injuries or disabilities. This includes physical and non-physical injuries or disabilities. There is an important physical component to the issues that the Human Rights Code is directed at. But a very important component of the Code's jurisdiction concerns non-physical conduct and the effects of that conduct. The Code clearly and explicitly deals with harassment and discrimination in employ­ment, and it contains a comprehensive administrative and adjudicative scheme, which includes a power of continuing supervision, for dealing with these sorts of issues, and which specifically contemplates compensating workers for the mental anguish they suffer as a result of being harassed or discriminated against in the workplace. I observe that unlike Saskatchewan's Occupational Health and Safety Act, for example, the Occupational Health and Safety Act in this Province does not specifically deal with harassment. And unlike the Ontario Human Rights Code, the Occupational Health and Safety Act does not specifically contemplate damages for harassment or mental distress.

77. However important issues of workplace discrimination, harassment or "poisoned environment" are, and however much these may affect the actual health, safety or well-being of a worker, it is apparent that the legislative treatment of these non-physical "hazards" is different from the legisla­tive treatment of physical hazards. The Board's jurisdiction under section 50 of the Occupational Health and Safety Act must be assessed in the context of this complex legislative and adjudicative scheme. The Board's role under section 50 of the Occupational Health and Safety Act is narrow and quite specific. The Board's jurisdiction is specific to the same kind of reprisal jurisdiction it has under other statutes, the Environmental Protection Act, for example. It is no part of the Board's job in a complaint under section 50 to rectify or remedy health and safety problems, as such. Indeed, the Board does not even inquire into the existence of health and safety problems, except to the extent that it is necessary to do so in order to properly deal with a reprisal complaint. Nor is the Board in a position anything like that of the Courts which have a broad and far-ranging inherent common law jurisdiction to deal with matters which may raise complex issues of fact and law, and questions concerning the interpretation and application of different statutes. Further, it is worth noting that notwithstanding this broad inherent jurisdiction, the Courts have become more and more willing to defer to a tribunal which appears to have statutory jurisdiction over the primary issue, albeit taking into account the apparent deficiency of the administrative law forum (see, for example, Weber v. Ontario Hydro, [1995] 2 5CR. 929 (Supreme Court of Canada)).

78. For the reasons given in Meridian, supra, I am satisfied that the Board's jurisdiction to deal with questions of harassment and discrimination in a complaint under section 50 of the Occupa­tional Health and Safety Act, is at best indirect, and indeed rather remote, when compared to the jurisdiction of the Human Rights Commission and human rights Boards of Inquiry to do so in the exercise of their specific and direct jurisdiction under the Human Rights Code. This does not mean that the Board will decline to inquire into a complaint under section 50 of the Occupational Health and Safety Act merely because the factual basis asserted for the complaint includes discrimination or harassment. However, where the "pith and substance" of the complaint concerns harassment or discrimination, it is generally appropriate for the Board to dismiss a section 50 complaint in the exercise of its discretion under subsection 50(2). The more difficult case will be one in which a significant Occupational Health and Safety Act reprisal issue and significant discrimination or harassment issues are both raised. In such a case, the question will be whether the Board ought to proceed with the complaint or defer it to another forum; namely, the one created by the Human Rights Code. Further, even if the Board considers it appropriate to defer in such a case, it may well be appropriate for the Board not to dismiss the complaint, but to adjourn it pending the filing or disposition of the matter at the Human Rights Commission.

79. What then is the applicant's complaint in this case? She complains:

(a) about the amount of work she had to do and the time within which she had to do it;

(b) that she was given inadequate training and resources, and was forced to work unpaid overtime hours;

(c) that her conditions of employment constituted differential treatment and that she was harassed and discriminated against by the responding employer;

(d) that she has suffered stress and physical illness, and emotional distress as a result of working conditions which she alleges constituted a serious workplace hazard, and that as a result of this and rude and degrading treatment she believed her job was threatened;

(e) that her employer was oblivious to her obvious difficulties and failed to do anything about them, notwithstanding that she complained about not being treated fairly or with consideration, and notwithstanding that her employer was aware that she was being harassed;

(f) that her employer failed to accommodate her hearing impairment;

(g) that her employer sought to speak to her and obtain medical information after she stopped working;

(h) about the termination of her employment; and

(i) that she has been discriminated against on the basis of race and physical disability (i.e. her hearing loss).

47. The question is whether the complaint suggests a prima facie case that the responding employer, or someone acting on its behalf, dismissed or threatened to dismiss the applicant, disciplined or suspended her or threatened to do so, imposed a penalty on the applicant, or intimidated or coerced her because she acted in compliance with or sought enforcement of the Occupational Health and Safety Act or Regulations. Does the complaint suggest a rational and objectively sustainable arguable case in that respect?

48. The mere fact that a worker is injured or becomes ill and is subsequently disciplined or discharged is not enough to suggest a breach of subsection 50(1). The effect of events on a worker will be relevant at the remedial stage. But when assessing whether the Act has been breached, or whether a prima facie case of a breach of the Act has been alleged, it is what the worker did to comply with or seek enforcement of the Act or Regulations and what the employer is alleged to have done in response which are the relevant considerations.

49. I am satisfied that the complaint does not make out a prima facie case in that respect. The applicant concedes that she never specifically invoked the protection of the Occupational Health and Safety Act or Regulations. I am satisfied that there is nothing which she did or said which was or could reasonably have been taken to be an attempt to act in compliance with or seek enforcement of the Act or Regulations, or that she reasonably believed that she was doing so. In that respect, there is nothing in her complaint which supports paragraph 45 of her pleadings (see paragraph 16, above) and her assertion that she exercised her right to refuse unsafe work or that she withdrew from work in the exercise of her rights under the Occupational Health and Safety Act. Indeed, in this case it appears that the alleged health and safety problem and the alleged reprisal are the same thing. There is nothing to suggest that anything which she complains about, including the termina­tion of her employment, occurred because she implicitly sought to exercise her rights under the Act, or because she had rights under the Act.

50. There is nothing in the complaint that suggests that the responding employer threatened to dismiss the applicant because she was exercising rights under the Act. There is nothing in the complaint that suggests she was discharged because she was exercising rights under the Act.

51. A change in conditions of employment, differential treatment or harassment, and perhaps even rude and degrading treatment or a failure to accommodate a disabled employee's needs, could conceivably amount to a penalty, or to intimidating or coercive conduct which constitutes a reprisal prohibited by subsection 50(1) of the Occupational Health and Safety Act. That is a conclusion which the applicant pleads, but there is nothing in her pleadings which arguably supports this conclusion.

52. The applicant's duties and responsibilities came with the promotion she accepted in January 1994. To the extent that these changed over time, there is nothing which suggests that her duties and responsibilities were imposed or changed in an improper response to the applicant's exercise of rights under the Occupational Health and Safety Act (whether or not she was aware of such rights). The applicant complains about her working conditions, duties and responsibilities, training and resources, and the alleged failure of the responding employer to investigate or do anything about these may raise questions concerning other provisions of the Occupational Health and Safety Act. But in this case, this raises no issue or reprisal under subsection 50(1). The fact that the applicant was forced to work unpaid overtime hours may raise Employment Standards Act issues, but there is nothing in this complaint which suggests an issue under subsection 50(1) of the Occupational Health and Safety Act. That the applicant may suffer from work-related physical or emotional illnesses or disabilities may suggest a workers' compensation issue. In this complaint it does not suggest a subsection 50(1) issue. The alleged failure to accommodate the applicant's hearing disability, and the alleged harassment and discrimination as pleaded appear to raise human rights issues. In this case, they raise no concomitant subsection 50(1) reprisal issue. Nor does the fact that the employer sought medical information and to speak with the applicant about her illness and absence from work even arguably constitute or raise a reprisal issue.

53. Does the applicant have a basis for wrongful dismissal, disability benefits or tort action in the Courts? Perhaps. Does she have a workers' compensation claim? Perhaps. Does she have an Employment Standards Act claim? Perhaps. Does the applicant have a human rights complaint? Perhaps. Does she have the basis for a claim that provisions of the Occupational Health and Safety Act other than subsection 50(1) have been breached? Perhaps. But what she does not have, on the face of her complaint, is an arguable prima facie basis for a complaint to the Ontario Labour Relations Board that the responding employer has breached subsection 50(1) of the Occupational Health and Safety Act. I am therefore satisfied that the complaint should be dismissed as disclosing no prima facie case.

54. In the alternative, even if there is some scintilla of a basis for a section 50 complaint to this Board, this would be an appropriate case for the Board to exercise its discretion to refuse to inquire into it. It is readily apparent that the pith and substance of this complaint is harassment and discrimination contrary to the Human Rights Code. The tenor of the complaint, the specific allegations contained in it (particularly the concluding paragraph of Schedule "B"), the relief requested, the absence of any effort to specifically or implicitly invoke the Occupational Health and Safety Act, and her August 21, 1996 letter complaining of human rights violations all demon­strate this. The harassment and discrimination complained of are specifically dealt with in the Human Rights Code and are at the core of the jurisdiction of the Human Rights Commission and its Boards of Inquiry, and the complaint raises issues which are best and appropriately dealt with under the Human Rights Code.

55. I return now to the facts. The applicant, on short notice, advised the company that he would be off work for two weeks. Towards the beginning of this two week period, he was involved in a car accident, which rendered him physically unable to return to work, and for an indefinite period. While he was off work, and when he submitted to the company his claim for short term disability benefits, the company told him that he had already been terminated. Subsequent investigation by the applicant confirmed this.

56. Whether Mr. Abdulkadir's termination, and the company's assertion that he had abandoned his job, were the result of miscommunication, inadvertence, or intention to penalize the applicant for the reasons asserted in the application, does not change the fact that he was either terminated because of a dispute over his attendance or non-attendance at work, or over his communication or lack of communication with the company in this respect, or (as asserted) because the company wanted to avoid any obligation to accommodate him upon his return to work (a proposition difficult to maintain in light of the settlement offers made during the grievance procedure, but one which is nevertheless accepted for purposes of this decision).

57. On these facts, as alleged, there is nothing to suggest that the applicant was seeking to enforce the provisions of the OHSA (or the regulations or order made thereunder), or acting in compliance with those provisions, or even attempting to do so. Similarly, there is nothing in the matters as pleaded that suggests how the company might have engaged in a reprisal or a threatened reprisal, or any untoward, inappropriate, or unlawful action towards the applicant because the applicant was either acting in compliance with or seeking the enforcement of the provisions of the OHSA or its regulations or orders made thereunder.

58. There is no doubt that Mr. Abdulkadir and Dough Delight have an employment dispute. Whether breaches of other statutes or the collective agreement might exist, the Board cannot say. Those are not matters that fall within the Board's jurisdiction under section 50 of the OHSA, and in any event, they are appropriately dealt with, if at all, in other forums (although it appears as if the alleged breach(es) of the collective agreement have already been considered during the steps of the grievance procedure).

59. Looking at the particular conduct complained of in more detail highlights that there is no arguable case pleaded for a breach of section 50(1) of the OHSA. For example, the applicant alleges that the company refused to give him his vacation pay when he was entitled to receive it, and that he was fired prior to his ability to file his claim forms for sort term disability benefits. Where is there any suggestion of an attempt to seek to enforce any provision of the OHSA, or to act in compliance with the Act? Where is there any suggestion of a reprisal or response from the employer that resulted from or flowed from the exercise of rights under the OUSA? Where is the causal link pleaded that suggests the applicant was somehow penalized or threatened because of the exercise of any statutory rights under this Act?

60. Section 50 is not a mechanism by which an individual can complain to the Board about any concern over his or her health and safety in the workplace. Whatever the legitimate and serious concerns about health and safety an individual may have arising from workplace events, if those concerns do not arise in the context described by, and circumscribed by, section 50, then a complaint does not lie to this Board pursuant to that section.

61. As stated, there appears not to be an arguable case pleaded here, and this application is accordingly dismissed.

62. Alternatively, in the exercise of the Board's discretion under section 50(3), the Board declines to inquire into this matter further. Even if there were pleaded an arguable case for a breach of section 50(1) of the OHS A, when one reads the materials forwarded by and relied upon by the applicant, it is apparent that the core (and periphery) of the dispute between the applicant and the company is a dispute over how he was treated while off work for an injury, both before and after the company terminated him. There is no suggestion that he was or might have been injured at work, or exposed to a hazard or danger at work. There is nothing pleaded that raises a concern or issue that invokes the core concern of the statute - health and safety dangers or risks at work, whether caused by objects, machines, people, or the workplace environment.

63. Accordingly, on this ground as well, the application is dismissed.