[1998] OLRB REP. MAY/JUNE 382

3467-95-OH Ontario Public Service Employees Union and James Slack, Applicants v. The Crown in Right of Ontario (Ministry of Solicitor General and Correctional Services (Metropolitan Toronto West Detention Centre), R.D. Phillipson, Nelson Cardoza and Michael Conry, Responding Parties

BEFORE: M. A. Nairn, Vice-Chair.

APPEARANCES: Ron Davis for the applicants; Stephen Patterson and Lianne Brossard for the responding parties.

DECISION OF THE BOARD; May 1, 1998

1. This is a complaint filed pursuant to section 5 0(2) of the Occupational Heath and Safely Act ("OHSA") alleging that the individual applicant was penalized for exercising his rights under that Act.

2. This matter was heard over a lengthy period as a result of various different delays. Many of the facts were ultimately not seriously in dispute, although the characterization of the events lay at the core of the parties' differences. At the conclusion of the hearing I ruled orally in respect of a portion of the complaint, finding that the corporate responding party (the "employer" or "Metro West") had violated section 50(1) of the OHSA in suspending Mr. Slack by letter dated November 27, 1995. I directed full compensation of any wages and benefits for the period of that suspension. I reserved on other matters. This decision provides my reasons in respect of the oral ruling and deals with all other aspects of the complaint.

3. Mr. Slack is a Correctional Officer ("C.O.") at Metropolitan Toronto West Detention Centre. Metro West is a maximum security holding facility for offenders waiting trial or transfer to other correctional facilities. Unlike a defined minimum to maximum security facility, Metro West houses all different kinds of offenders. There are three areas, adult male, female, and the young offender unit. This latter group are male, phase II offenders, that is, they are older than 16 years. Some are over 18 years having been charged with crimes committed while still young offenders. Mr. Slack was assigned to the young offender unit.

4. Certain assignments in the young offender unit include a C.O. being physically present within the living unit, referred to as the dayroom. The parties agreed that work on the young offender unit has inherent physical risks and that young offenders fight. Having regard to all of the evidence I am satisfied that in the usual course the dayroom assignment in the unit carries with it the greatest risk of physical injury for a C.O. By comparison, for example, C.O.s assigned to the adult male or female units are not required to be present in the living unit while inmates are out of their cells. Similarly while there are inherent risks during escort and other activities outside the dayroom, there is generally a higher probability for inmate cooperation and less intimate contact between inmates. By intimate I refer to the daily irritations of sharing space in the dayroom, for example, conflicts over the use of television or telephone, dealing with varying personalities and the like.

5. At issue in this complaint is discipline imposed as a result of events on November 10, 1995 and subsequent employer action in December 1995. The history leading up to these events requires review.

6. Mr. Slack was injured in a confrontation with a young offender in April 1995 and was away from work and in receipt of Workers' Compensation ("WC") benefits. He returned to work and was reinjured in an accident on July 20, 1995. Temporary total benefits were paid by the Workers' Compensation Board ("WCB") to September 8, 1995. At that time the WCB considered Mr. Slack fit to return to modified duties. Restrictions were outlined in a WCB letter of September 21, 1995. The WCB letter was received by Mr., J. Rutherford, the Manager of Staff Services at Metro West and the person responsible for managing WCB claims on behalf of the employer.

7. Mr. Slack was seen by two physicians during September 1995. On September 20, 1995 Mr. Rutherford received information from a Dr. Kelly that indicated Mr. Slack was capable of performing certain duties but was not capable of the full duties of a C.O. Dr. Prior, an orthopedic specialist, provided a report dated September 26, 1995 to the WCB which recommended a return to full duties. The WCB Claims Adjudicator advised Mr. Rutherford of the contents of that report. According to Mr. Rutherford, it was that confusion that prompted a desire to clarify Mr. Slack's then current medical status, to get a prognosis for full return, and some confirmation of the level of impairment.

8. It was determined that Mr. Slack would be seen by a Dr. Heffernan, pursuant to the terms of the collective agreement which provide that the employer may require a medical examination where, for reasons of health, an employee is frequently absent or unable to perform his duties. A letter was forwarded to Dr. Heffernan dated October 26, 1995 from Mr. Rutherford, setting out the collective agreement provision, enclosing a completed release form from Mr. Slack and a list of correctional officer duties. The letter requests that Dr. Heffernan address three issues; the nature of the illness or injury and whether it affected the ability to perform the full duties of a C.O.; an assessment of the likelihood of future regular attendance; and advice as to any restrictions or limitations to assist the employer in determining an appropriate course of action.

9. That examination was conducted on October 30, 1995 and Dr. Heffernan's report is dated November 3, 1995 (the "mandatory medical"). That report reviews the medical history and addresses the specific issues as follows:

Specifically addressing the issues raised in your letter of October 26, 1995.

1. At present due to ongoing weakness and discomfort in his right shoulder I do not feel Mr. Slack is capable of safely carrying out his duties as a correctional officers. The areas where he would be at risk and possibly put other officer[s] at risk would be:

i. His ability to restrain and subdue hostile offenders.

ii. His ability to carry out riot control.

iii. His ability to safely search offenders.

iv. His ability to ensure the safety and security of offenders.

Because of the above, his ability to assume the responsibility for a living unit of up to 60 offenders. [sic] He also expressed concern about carrying the M.S.A. air mask equipment on his back with a strap pulling on his right shoulder.

2. In order for Mr. Slack to attend work regularly and perform his correctional officer duties I feel he will require a specific work hardening program carried out under the supervision of a trained physiotherapist. He would require a weight training program to strengthen his right shoulder and the surrounding muscles. I feel this strengthening program would take eight to nine weeks and I would recommend he attend at the King Cross Physiotherapy in Brampton for this. After eight to nine weeks he should be able to carry out his duties as a correctional officer keeping in mind his restrictions regarding second hand smoke.

3. At present his restrictions should be as outlined in the letter written to Mr. Slack by the WCB on September 1, 1995. Specifically

• Non-repetitive right shoulder movement

• No heavy lifting

• No above shoulder activity and repetitive use of the right upper extremity against resistance.

[emphasis added]

10. Dr. Heffernan goes on to conclude that in his opinion Mr. Slack has a temporary disability but is capable of modified duties if able to be organized in addition to a work hardening program. He recommends duties not unlike those reviewed in the WCB September 21, 1995 letter, and continues the work restrictions outlined in that same letter.

11. On November 6, 1995 Mr. Rutherford met with Mr. Slack and confirmed the meeting with a memo. That memo acknowledges receipt of the mandatory medical "which indicates that you will require" modified duties for up to two months. Mr. Rutherford also states:

Please note that you have been deemed fit to return to your pre-injury position by the Workers' Compensation Board, therefore, there is no legislated requirement for the employer to accommodate restrictions imposed by your physician regarding the compensable injury. However, in an effort to assist you in returning to full duties, the following accommodation will be provided.

You will be assigned to the front lobby desk of the male unit. You can perform all the duties of that area except responding to emergencies codes. You will not become involved in any use of force situations, nor will you assist in the lifting of any person or object weighing in excess of 10kg.

12. Also on November 6, 1995 the WCB wrote to Mr. Slack indicating that it had reviewed his claim and the report of Dr. Prior. The Claims Adjudicator finds that effective September 26, 1995 Mr. Slack was fit to return to pre-accident (full) duties. Prior to meeting with Mr. Slack and making the offer of modified duties Mr. Rutherford had spoken with the Claims Adjudicator and was aware of the WCB's position. He had requested that a copy of the letter be faxed to him and it appears that he received it later that day.

13. On November 7, 1995 Mr. Rutherford met with Mr. Slack and a union representative and withdrew the offer of modified duties on the basis that the WCB had reviewed Dr. Prior's report and had deemed Mr. Slack able to return to full duties effective September 26, 1995. Mr. Rutherford was aware that the WCB had not reviewed the mandatory medical. He testified that he spoke with the Claims Adjudicator on November 6, 1995 and disclosed the contents of that report and that the Claims Adjudicator advised him that the WCB would prefer the report of the orthopedic specialist.

14. The employer's change of heart was explained on the basis that at the time of the offer of modified duties Mr. Rutherford did not have written confirmation of the WCB's position. There was considerable evidence surrounding this action by Mr. Rutherford. There is no explanation as to why Mr. Rutherford, in the absence of written confirmation, did not merely wait one day for WCB's written response. Although Mr. Rutherford suggested that his offer was a prudent one until such time as he received the WCB determination, the offer of modified work extends far beyond what would be required in that circumstance. It provides a two month period of modified work, with a scheduled review in December 1995 and January 1996. Mr. Rutherford's explanation that he should have written the memo more fully does not clarify the matter. It was written very fully, but evidenced an entirely different intention from accommodating for a day or two while waiting for written confirmation from the WCB. The memo is also clear that the offer was made irrespective of the WCB's position.

15. According to Mr. Conry, the Deputy Superintendent of Metro West, it was his direction to Mr. Rutherford that Mr. Slack be assigned to full duties given the WCB's position. Mr. Conry was aware of the contents of the mandatory medical at the time and the fact that the medical had been obtained at the behest of the employer. Mr. Conry stated that he took from both the WCB position and the mandatory medical that Mr. Slack was not 100% but could still perform full duties. This explanation belies the words of the mandatory medical. The only explanation as to why the offer of modified duties was withdrawn was that the employer relied exclusively on the WCB's position. Both Mr. Phillipson, the Superintendent of Metro West, and Mr. O'Rourke, the Manager of the Young Offender Unit, are copied on the memo withdrawing the assignment of modified work and directing a return to full duties.

16. Both in person and by that November 7, 1995 memo Mr. Rutherford advised Mr. Slack that effective November 7, 1995 Mr. Slack was assigned full duties on Unit 4A (more particularly the dayroom assignment) and that the assignment was to be without restrictions. On November 7, 1995, in the face of the withdrawal of modified work, Mr. Slack requested accommodation based on the mandatory medical. The evidence surrounding who had the authority and/or ability to deal with that request is troubling at best.

17. Mr. Rutherford explained that he dealt with the request for accommodation strictly from the WCB aspect and that he suggested to Mr. Slack that if he wanted to pursue it he could speak to Mr. O'Rourke. Mr. Rutherford advised Mr. O'Rourke of the WCB decision, provided him with the WCB letter, and told him Mr. Slack was seeking accommodation. Mr. Rutherford apparently also told Mr. O'Rourke that the request was now beyond Mr. Rutherford's authority, notwithstanding the fact that Mr. Rutherford appeared able to make the earlier offer in the express absence of WCB direction. Further, Mr. Rutherford testified that, at that time, he was the person who would respond to requests for accommodation from employees on a return to work from non-compensable injuries in accordance with the Ontario Public Service written policy directive concerning accommodation in employment for person with disabilities. It also contradicts Mr. O'Rourke's evidence that in his view any determination of modified duties was at that time Mr. Rutherford's responsibility. In his evidence, Mr. O'Rourke evidenced no particular authority to provide modified duties and he relied entirely on Mr. Rutherford's assessment.

18. One might conclude from this evidence that there are serious gaps in the assignment of responsibilities and/or understanding of those responsibilities when it comes to assessing requests for accommodation and modified duties. Alternately, no one dealt with the request, or more likely, neither Mr. Rutherford or Mr. O'Rourke was the real decision-maker in this instance. In any event however Mr. Rutherford left Mr. Slack with the clear impression that Mr. O'Rourke did have the authority to consider and assign modified duties even if Mr. Rutherford could not.

19. Mr. Rutherford testified that he told no one other than perhaps Mr. Phillipson of the contents of the mandatory medical, including the restrictions, because he considered it confidential. This appears to at least partly contradict his earlier evidence to the effect that he would advise supervisors of the nature of any restrictions on a worker returning. Between November 7 and 10, 1995 Mr. Rutherford could recall no further discussion with Mr. Slack regarding accommodation. Specifically, he could not recall Mr. O'Rourke asking him about the mandatory medical between November 6 and 10, 1995.

20. Mr. Slack and Mr. Olsen, a local union representative, met with Mr. O'Rourke on November 7, 1995 in the afternoon. Mr. Slack again requested modified duties and referred to the auxiliary post. According to his own evidence, Mr. O'Rourke responded by indicating that he was satisfied the information he had from Mr. Rutherford was accurate and he was not prepared nor capable of offering modified duties. Mr. Slack had the mandatory medical and advised Mr. O'Rourke that it concluded he had restrictions. Mr. O'Rourke neither asked for it nor read it. He reiterated his acceptance of the information he had obtained from Mr. Rutherford. He stated he was not prepared to get into a debate over conflicting medical views. Subsequently in cross-examination Mr. O'Rourke stated that he would pay attention if a doctor specifically told him that a C.O. had restrictions on his abilities that cause concern for his safety and that of others. He did not pay attention here.

21. On November 7, 1995 Mr. O'Rourke told Mr. Slack that he would speak to Mr. Phillipson and see if anything else was to be done and that he would inform Mr. Slack of those discussions prior to his next shift. He later described this offer as "purely a gesture that I wasn't shutting (Slack) out".

22. Mr. O'Rourke did speak with Mr. Phillipson with no resulting change in the employer's position. Although Mr. O'Rourke could not specifically recall, he was of the view that he told Mr.

Phillipson of the mandatory medical and that there was some discussion of it. If I accept Mr. Rutherford's evidence that he would not disclose the contents of the mandatory medical, the nature of any discussion between Mr. O'Rourke and Mr. Phillipson concerning that medical is not apparent and would necessarily be incomplete. Alternately one or both had read it and treated its contents as somehow irrelevant. Mr. Phillipson did not testify. Mr. O'Rourke did not speak to Mr. Slack before his next shift. He did speak with Mr. Cardoza and advised him that when Mr. Slack reported for duty he was to be assigned to full duties. Mr. Cardoza was the shift supervisor on Mr. Slack's next scheduled shift, the night shift on Friday November 10, 1995.

23. Mr. Cardoza is the Manager of the Staff Training Department at Metro West. On November 10, 1995 he was acting as shift supervisor for the 12-hour night shift. He had been a member of the health and safety committee for approximately three years and had some limited prior experience in health and safety.

24. While there was some disagreement as to precise words and times, and a clear dispute as to the characterization of events, the essential facts that ultimately led to Mr. Slack's suspension are not in dispute. On November 10, 1995 Mr. Slack reported for duty. During the regular muster Mr. Cardoza told Mr. Slack he was assigned to Unit 4A, full duties (the dayroom assignment). After muster Mr. Slack informed Mr. Cardoza that he was not to work full duties. Mr. Cardoza had contrary information. There was a dispute as to the words used; the employer taking the position that Mr. Slack told Mr. Cardoza that he was assigned to modified duties and/or that he did not have to work full duties, in an attempt to deceive Mr. Cardoza. It is probable that Mr. Slack took an aggressive posture with Mr. Cardoza in an attempt to have him address the mandatory medical. Mr. Slack sought and received permission from Mr. Cardoza to obtain documentation from his car. Mr. Slack returned with a file and told Mr. Cardoza he had a letter from a doctor (the mandatory medical) outlining the restrictions on duties he could perform. Mr. Cardoza asked Mr. Slack if he had received Mr. Rutherford's letter (referring to the November 7, 1995 memo). Mr. Slack acknowledged that he had. Mr. Slack also confirmed that Mr. Rutherford and Mr. O'Rourke were aware of the mandatory medical with no resulting change in assignment. Mr. Cardoza asked Mr. Slack if he had any information not yet considered by Mr. O'Rourke and Mr. Slack advised he did not.

25. Mr. Cardoza told Mr. Slack he was assigned to Unit 4A on full duties and asked him to comply. He did not seek to review the medical information. According to Mr. Cardoza, Mr. Slack indicated he could not respond without a union representative. Although Mr. Cardoza advised that he had no obligation to provide such an opportunity, he allowed Mr. Slack to find a representative and return to discuss the matter further.

26. There is a dispute between the parties as to the amount of time that then elapsed before the conversation continued. Mr. Slack was not able to locate a union representative. Mr. Cardoza did not assist in that effort. On his return to the office Mr. Cardoza instructed Mr. Slack to report to Unit 4A. Mr. Slack requested an accommodation in his work assignment. Mr. Cardoza acknowledged that he understood that Mr. Slack was requesting an accommodation but he interpreted the request as a favour pursuant to which Mr. Slack would agree to work.

27. Mr. Cardoza asked Mr. Slack if he understood the order to report to Unit 4A on full duties. Mr. Slack confirmed that he did. He did not however make any move to go. Mr. Cardoza asked if he was refusing the order and Mr. Slack did not reply. Mr. Cardoza then informed Mr. Slack that he would take his silence as a refusal. After waiting and then ordering him again, Mr. Slack then said no. Mr. Cardoza then suspended Mr. Slack for refusing to comply with the order to report for full duties and instructed him to report to the Superintendent's office (to Mr. Conry) on the Tuesday following that long weekend. Mr. Cardoza took Mr. Slack to the staff lounge and in response to a further request for union representation Mr. Cardoza advised Mr. Slack that providing a union steward was not his responsibility. Mr. Slack did have a brief opportunity to speak to another C.O. in the lounge. Mr. Cardoza subsequently instructed Mr. Slack to leave the premises which he did. Mr. Slack stated that he was leaving under duress and that he didn't agree with Mr. Cardoza's decision.

28. Mr. Slack contacted the Ministry of Labour, Occupational Health and Safety Branch, from his home to report these events. An inspector called Mr. Cardoza and told him that Mr. Slack had taken the position that he had been suspended as a reprisal for refusing to work on health and safety grounds. Mr. Cardoza took the position that Mr. Slack had been suspended for refusing to perform work and that no health and safety issue was involved. Although Mr. Cardoza stated that the inspector only "suggested" conducting a stage one investigation under the OUSA, it is clear the inspector expected Mr. Cardoza to contact her to inform her of the results of that investigation.

29. A number of phone calls back and forth between Mr. Cardoza and Messrs. O'Rourke and Mr. Conry and conversations between Mr. O'Rourke and Mr. Conry then occurred. Mr. Cardoza stated that he recounted the events as they had occurred with Mr. Slack and therefore it was likely that both Mr. O'Rourke and Mr. Conry were aware that Mr. Slack had referenced the mandatory medical in the context of his refusal and request for accommodation. There was a consensus among these employer representatives that there was no work refusal and that the suspension should stand. A decision was made, apparently by Mr. Conry, not to conduct a stage one investigation as the employer took the position that no health and safety issue was involved. This decision was communicated to the inspector and to Mr. Slack.

30. The inspector did attend at Metro West later that night to investigate. The inspector's report indicates she requested the presence of the refusee and a worker member of the joint health and safety committee. Apart from employer representatives only a senior employee on the night shift attended. There was no evidence that she had any opportunity to speak with Mr. Slack or that she had any health and safety experience. Mr. Slack was not called back to the institution. Mr. Cardoza did not accept any responsibility for these shortcomings saying it was not his meeting and that the inspector had only asked for someone from the union and the employee was a union member. Yet he also stated he was aware of section 43(7) of the OHSA meaning he either understood or ought to have understood that the employee was not qualified under the terms of the OHSA to act in a representative capacity. Further, Mr. Conry acknowledged that, under the protocol established before the employer and the trade union for dealing with work refusals and the resulting investigation, it was the employer's responsibility to ensure the presence of a health and safety committee person.

31. This evidence speaks to the employer's motive in ultimately dealing with Mr. Slack. The employer was unwilling to pursue or to ensure an appropriate process for the inspector's investigation. It had already made its decision. To take the position that there is no work refusal and no health and safety issue and thereby ignore the protocol is to ignore the very dispute. It is not open to an employer to make such a unilateral decision and ignore the third party process to have that very issue considered. Further, having allowed this flawed process, where only the employer's position was heard, the employer subsequently relied on the inspector's report in support of its position that there had been no work refusal. Mr. Cardoza agreed that he likely did not tell the inspector of the mandatory medical as it was not mentioned in her report. The inspector's brief report indicates that Mr. Cardoza stated that the worker declined to carry out orders and was therefore sent home. The report concludes that this was not a work refusal and further investigation could not be conducted due to the absence of the worker.

32. On November 14, 1995 when Mr. Slack reported to Mr. Conry he was told there would be a disciplinary hearing on November 16th to consider the allegation that on November 10, 1995 his actions to Mr. Cardoza were insubordinate. Mr. Conry advised Mr. Slack that he would have to perform full duties on his next assigned shift, November 15, 1995. Mr. Ford, the union local's Vice-President, took the position that the events of November 10 were a work refusal under the OHSA and reiterating, based on the mandatory medical, that Mr. Slack was not fit for full duties. Mr. Conry maintained the position that Mr. Slack was fit. Both positions were confirmed in writing by Mr. Conry at the request of Mr. Ford. By this time Mr. Conry was aware of the restrictions set out in the mandatory medical.

33. As a result of that meeting with Mr. Conry, the Ministry of Labour was again called in and an investigation was conducted by Ministry health and safety inspectors on November 15, 1995. The inspector's report concludes that as violence is an inherent part of the work there was no right to refuse under section 43 of the OHSA. The report goes on however to confirm that other provisions of the OHSA apply, that the worker is protected from reprisals, and concludes that the issue is likely able to be resolved by the workplace parties. Mr. O'Rourke recalled reference by the inspector to the obligation of a supervisor to take every reasonable precaution in the circumstances to protect a worker. The report concludes:

The employer should note that the most recent medical opinion must be seen as the medical report to be relied on.

34. Mr. Rutherford was present at that meeting and understood that it was the inspector's opinion that the mandatory medical should dictate the parties' actions and that the parties should resolve the issue of accommodation between themselves. Mr. Rutherford also agreed that the Ministry report stated that according to the mandatory medical, Unit 4A was not a safe place for Mr. Slack to work. Mr. O'Rourke stated the inspector found there was no work refusal but then agreed that the report only found that there was no right to refuse. Mr. O'Rourke agreed that this did not mean that the employer could punish Mr. Slack with impunity. He stated that Mr. Slack was not being punished for a refusal because in his view there was no indication there was a health and safety refusal. Mr. O'Rourke offered that part of the employer's meeting with the inspector resulted in a discussion of the validity of the WCB decision versus the mandatory medical. After this meeting Mr. Slack was assigned to modified duties in line with the restrictions in the mandatory medical, although probably because other assignments were filled by this time in the shift. Messrs. Cardoza and O'Rourke also attended that meeting.

35. Following the inspector's meeting Mr. Conry met with Mr. O'Rourke and Mr. Monteiro, the employer's representative on the health and safety committee and Deputy Superintendent of Services. From Mr. Monteiro's advice Mr. Conry concluded that the only relevance to the inspector's report was the fact that no orders were made against Metro West. While that opinion may reflect the narrow view of what Metro West may or may not have been required to do by the inspector, it speaks not at all to the exercise of its other obligations under the OHSA. The inspector has no authority to deal with reprisals.

36. A disciplinary hearing was held on November 16, 1995. Mr. Slack and the union took the position throughout that his actions constituted a work refusal, that it was not a matter of insubordination, and that the hearing itself constituted a reprisal under the OHSA. Mr. Conry confirmed that Mr. Slack understood he had been assigned to full duties by Mr. Rutherford and Mr. O'Rourke, and that he had worked the auxiliary post (not a modified position in his View) on November 7, 1995 without incident or complaint. Mr. Conry was aware of the conflicting medical evidence.

37. By letter from Mr. Conry dated November 27, 1995 Mr. Slack was suspended effective November 30, 1995 without pay for 10 shifts (a total of 92 hours). The letter provides in part:

In conclusion, I find it necessary to remind you of how serious I consider this offence. You had clear information and instructions from both Mr. Rutherford, Staff Services Manager, and Mr. O'Rourke, Manager, Young Offender Programs, as to management's position with regards to your employment status. You completed a tour of duty on November 7th, t995, assigned to full duties of a correctional officer without incident or concerns. Furthermore, you attempted to undermine Mr. Cardoza's right to manage the young offender unit by your actions on Friday. November 10th, 1995.

This type of conduct will not be tolerated. I expect there will not be a recurrence of this offence, however, if there is, I must inform you that a more serious penalty will be imposed, which may include dismissal.

38. The union met with Mr. Phillipson on November 30, 1995. Mr. Phillipson did not rescind the suspension.

39. On December 4, 1995 Mr. Slack wrote to Mr. Conry challenging the suspension and taking the position that Mr. Conry was ordering him to report for work which was unsafe. Mr. Conry understood that Mr. Slack was raising a health and safety issue concerning his return to work following the suspension. Mr. Slack also wrote to Mr. Phillipson on December 19, 1995 advising the employer that his return to assigned duties was "under duress" and clearly raising the health and safety risks he continued to assert.

40. Mr. Slack returned to work on December 20, 1995 following the suspension and was again assigned full duties on Unit 4A. Mr. Slack gave the shift supervisor a copy of his letter to Mr. Phillipson at the outset of that shift. Later that afternoon Mr. Rutherford met with Mr. Slack regarding his return to work. In that meeting Mr. Slack advised Mr. Rutherford that the WCB had extended benefits to October 30, 1995 and that he was appealing its denial of benefits after that date. As a result of this information Mr. Rutherford took the view that Mr. Slack was fit to return to full duties as of October 30, 1995. Mr. Rutherford indicated that he may have met with Mr. Conry prior to this meeting, although he was not certain. Mr. Rutherford also took the view that this meeting was solely to discuss Mr. Slack's WCB status notwithstanding the fact that Mr. Slack and Mr. Olsen continued to attempt to raise the limitations as a health and safety issue.

41. That meeting was followed up with a memo from Mr. Rutherford. The memo reiterates the employer's position that it adopted the WCB finding that Mr. Slack was fit to return to full duties and stated that it was the employer's expectation that he do so immediately. The memo states, "failure to do so may result in your removal from payroll". Mr. Rutherford denied that this was any kind of threat of dismissal or other reprisal. He testified that he was referring to the use of vacation credits or lieu time but agreed that if those credits were used Mr. Slack would remain on the payroll and that the words used did not convey the meaning he asserted. In re-exam he explained that once credits were exhausted an employee would be off the payroll and that he was unaware of the status of Mr. Slack's credits. Mr. Conry understood the words "not on payroll" as meaning "not being paid" and asserted this was common terminology in the institution.

42. On December 21, 1995 the Ministry inspector completed a field visit report in respect of Mr. Slack's return to work. That report notes that Mr. Slack took the position that he was being assigned duties that he was not medically fit to perform safely. The report further notes that the Ministry's position remained unchanged; that the last medical report must be relied on. The inspector indicates that the matter is primarily one of accommodation.

43. On January 3, 1996 Dr. Heffernan provided a medical note continuing the same restrictions as in his earlier report until the physiotherapy was completed. As a result of that note Mr. Slack was sent home by the shift supervisor because he could not provide modified work. When Mr. O'Rourke became aware of the note it did not cause him to re-think Mr. Slack's assignment on Unit 4A.

44. Subsequently on January 12, 1996 Mr. Slack was injured at work during an inmate altercation and was subsequently accommodated on a light duty assignment.

45. While this was ongoing the WCB had extended temporary total disability benefits to Mr. Slack for the period ending October 31, 1995; a change from the earlier finding that he was fit for full duties as of September 26, 1995. Subsequently on January 29, 1996 the WCB further extended Mr. Slack's temporary total disability benefits beyond October 31, 1995 based on the medical information provided by Dr. Heffeman. The WCB also concluded that the work offered after November 6, 1995 by the employer was not suitable given the medical restrictions. The employer appealed both extensions of benefits. The WCB subsequently scheduled surgery for Mr. Slack's shoulder in September 1996.

46. I heard a considerable amount of evidence about the various duties and responsibilities of the C.O. assigned to the dayroom, the auxiliary post, and other assignments. It is not necessary to review that evidence in detail. Although the employer took the position that an assignment to the auxiliary post was a full duty position, it is clear that the general duties of an auxiliary officer would expose that officer to less risk in the normal course than an assignment to the dayroom.

47. The primary duty of the auxiliary officer on the night shift (1845 to 0700)is escorting young offenders for visits. The C.O. also has responsibilities in respect of snack, picking up the count at lockdown, data entry, processing new admissions, and responding to codes (various kinds of emergencies). The auxiliary C.O. may also be assigned to pick up young offenders who are misbehaving in open custody arrangements and transfer them back to secure custody. The only responsibility that would normally involve entering the dayroom would be in response to a code and only after ensuring that any inmates on escort have been secured. While no area or activity in the facility is free of risk, it was not disputed that the bulk of incidents causing greater potential for risk occur in the dayroom. Contrary to the assertion of the employer, the fact that Mr. Slack completed a night shift on November 7, 1996 safely, while assigned to the auxiliary post, and in the absence of any evidence of any incident, speaks little, if at all, to his ability to safely perform the full duties of a C.O. in the dayroom or elsewhere on an ongoing basis.

48. Similarly while the employer took the position that there were no modified duty positions in the young offender unit, it was apparent that on various and regular occasions the employer accommodates and assigns modified work. That was evident even from those occasions where the employer did accommodate Mr. Slack.

49. I also heard a considerable amount of evidence as to the precise chronology and timing of the interaction between Mr. Cardoza and Mr. Slack on November 10. Much of that evidence was led to refute the employer's suggestion in evidence that Mr. Slack took too long in finding a union representative and was otherwise not acting responsibility. I am satisfied that Mr. Cardoza exaggerated the time taken by Mr. Slack given the discrepancy between his evidence and the entry in the log book indicating that Mr. Slack was escorted out of the sally port doors by 7:20 p.m. However none of this evidence was of any consequence except perhaps as small corroboration of the employer's antipathy toward Mr. Slack.

50. The relevant provisions of the OHSA provide:

51. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;

(c) the measures and procedures prescribed are carried out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) a floor, roof, wall, pillar, support or other part of a workplace is capable of supporting all loads to which it may be subjected without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act.

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

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(c) when appointing a supervisor, appoint a competent person;

(e) afford assistance and co-operation to a committee and a health and safety representative in the carrying out by the committee and the health and safety representative of any of their functions;

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

27. (1) A supervisor shall ensure that a worker,

(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and

(b) uses or wears the equipment, protective devices or clothing that the worker's employer requires to be used or worn.

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

(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;

(b) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and

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

28. (1) A worker shall,

(a) work in compliance with the provisions of this Act and the regulations;

(d) report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.

(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

43. (1) This section does not apply to a worker described in subsection (2),

(a) when a circumstance described in clause (3) (a), (b) or (c) is inherent in the worker's work or is a normal condition of the worker's employment; or

(b) when the worker's refusal to work would directly endanger the life, health or safety of another person.

(2) The worker referred to in subsection (1) is,

(c) a person employed in the operation of a correctional institution or facility, a training school or centre, a place of secure custody designated under section 24.1 of the Young Offenders Act (Canada) or a place of temporary detention designated under subsection 7 (1) of that Act or a similar institution, facility, school or home;

• • • j3 (3) A worker may refuse to work or do particular work where he or she has reason to believe that,

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

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

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

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.

51. The issue before me was whether the employer had penalized Mr. Slack because he had either acted in compliance with the OHSA and/or the regulations or had sought the enforcement of same. The purpose of section 50 of the OHSA and the nature of the exercise before me has been reviewed in a number of cases and is not new or novel. It is incumbent on the employer to show, on a balance of probabilities, that the disciplinary action was not motivated, even in part, because the workers was acting in compliance with the OHSA or its regulations and/or was seeking the enforcement of same. (See Inco Metals Co. [1980] OLRB Rep. June 836; Commonwealth Construction Company [1987] OLRB Rep. July 961;Art Shoppe [1988] OLRB Rep. Aug 729; Meridian Magnesium Products Limited [1996] OLRB Rep. Dec 964).

52. There is no doubt that the employer had an overriding view as to Mr. Slack's motive in pursuing a modified assignment. In the letter of suspension Mr. Conry interpreted Mr. Slack's actions in attempting to revisit the issue of his assignment on November 10, 1995 as manipulative, as neither Mr. Rutherford or Mr. O'Rourke were in the building and Mr. Cardoza was not the regular supervisor. Yet Mr. Slack showed up for work, and during muster, was given an assignment to the dayroom on Unit 4A in circumstances where Mr. Slack could not and did not know whether Mr. O'Rourke had spoken with Mr. Phillipson as promised, or whether anyone had spoken to Mr. Cardoza. When he approached Mr. Cardoza he had no information as to the state of the employer's internal communication. He had not heard from Mr. O'Rourke. Mr. Slack also had no way of knowing that Mr. O'Rourke's promise was merely a "gesture" with no possibility of a different response. Mr. Slack had also been given a different assignment on November 7. In these circumstances it is difficult to conclude that manipulation was at the root of Mr. Slack's attempt to again raise the issue with Mr. Cardoza. Yet that is precisely how Mr. Conry interpreted Mr. Slack's actions.

53. Mr. Conry relied on Mr. Slack having told Mr. Cardoza that he was granted and approved modified duties. Even ignoring Mr. Slack's understanding that Mr. Phillipson would be asked to review his request and interpreting Mr. Slack's actions as taking the opportunity to pursue the matter again, construing it as somehow manipulative, at worst it represents a last ditch attempt to have the employer respond to the mandatory medical, a motivation that, in the circumstances, seems hardly culpable.

54. It was evident throughout these proceedings that the usual hierarchical and relatively militaristic structure utilized by the employer, while no doubt very useful and appropriate in many circumstances had the effect of limiting the employer's ability to differentiate between the exercise of legitimate employee rights and a challenge to authority. The management members of Metro West involved in this complaint think Mr. Slack is avoiding work, is exaggerating his medical condition, that he inappropriately challenges authority, and is, at best, a problem employee.

55. The employer argued that this matter depended on a determination of Mr. Slack's credibility. I disagree. Even assuming that Mr. Slack was seeking a preferred assignment he was entitled to assert that position based on the mandatory medical. Reading the mandatory medical and its detailed response to the particular duties of a correctional officer provides independent objective evidence of a health and safety problem. The report is abundantly clear and cannot be interpreted otherwise. Having sought the medical opinion specifically to assist in providing some clarity in respect of Mr. Slack's medical condition, the employer apparently did not like the results. The employer had reached a view concerning Mr. Slack's motivation which required it to ignore Dr. Heffeman's letter. And each individual acting on behalf of the employer did ignore it.

56. In submissions the employer agreed that a correctional officer does have a limited right to refuse work under section 43 of the OHSA. That right is recognized in the protocol for dealing with work refusal situations established between the union and the Ministry of Correctional Services and filed in these proceedings. The right to refuse is described in section 43 in the negative and it is perhaps easier to understand when described as it is by Exhibit R-17, a document prepared for the use of employees:

Persons employed in the operation of a correctional institution or facility,.., have a conditional right to refuse unsafe work under Section [43]. These workers may exercise their right to refuse where

• the circumstances which prompted the refusal is not inherent in the work;

• the circumstances which prompted the refusal is not a normal condition of the worker's employment or

• a refusal would not directly endanger the life, health or safety of another worker, client or the public.

57. The employer also agreed that if a correctional officer was subject to physical limitations or restrictions as a result of illness or injury such a condition would not be a normal condition of the worker's employment. The employer does not dispute, for example, that a correctional officer wearing a cast on a broken leg would be entitled to refuse an assignment to full duties on Unit 4A on health and safety grounds. On that theoretical point the employer's acknowledgment of this limited right to refuse goes further to support Mr. Slack's claim than the Ministry inspector's report of November 10, 1995. The only difference here is that this employer did not believe Mr. Slack when he claimed his injury created limitations on his ability to safely perform all of those duties. Whatever other basis the employer may or may not have had to reach that conclusion, in order to do so it was necessary that they ignore the mandatory medical. The employer ignored the mandatory medical rather than pursue any further investigation of Mr. Slack's medical condition notwithstanding, at best, contradictory medical evidence and at worst, clear medical evidence of specific limitations giving rise to health and safety concerns.

58. Mr. Cardoza testified that he was aware of his obligations as a supervisor to take every precaution reasonable in the circumstances to protect a worker. He further agreed that if an employee advised him of limitations he had a duty to consider those in order to determine the risk before assigning duties. He agreed that if someone was unfit for full duties that could raise a health and safety issue. On the one hand he stated that he did assess the risk in this case. Yet he agreed he had no knowledge of Mr. Slack's limitations. Nor did he inquire. Although he suggested that Mr. Slack did not provide him with a copy of the mandatory medical, neither did he ask to review the document Mr. Slack was holding. I reject any suggestion that Mr. Slack would not have provided Mr. Cardoza the opportunity to review it had interest been expressed.

59. However, later in his cross-examination Mr. Cardoza stated that he saw no necessity to read the mandatory medical because the issue had already been addressed. He stated Mr. Slack's case was not a health and safety issue. When asked to explain he stated the issue of the mandatory medical had been addressed by Mr. Slack and Mr. O'Rourke on November 7 and nothing had changed since then. He agreed that he understood that Mr. Slack was requesting that Mr. Cardoza deal with the limitations in the context of his work assignment.

60. Mr. Cardoza testified that Mr. O'Rourke gave no context or there was no real discussion concerning the instruction that Mr. Slack was to report for full duties on Unit 4A. Yet Mr. Cardoza's notes and his evidence confirm that he was aware of Mr. Rutherford's letter regarding Mr. Slack's WCB status, he believed that a determination as to fitness had already been made, and he was aware that Mr. Slack had worked on November 7 on the auxiliary post. I am satisfied that Mr. O'Rourke told Mr. Cardoza more than simply to assign Mr. Slack to Unit 4A. Otherwise there is no logical explanation for Mr. Cardoza's disinterest in the details of the mandatory medical given his understanding of his responsibilities under the OHSA.

61. A review of Mr. Cardoza' s own evidence leads to only one conclusion. He accepted the view of his superior that Mr. Slack had no legitimate health and safety concern and he made no independent inquiry.

62. Mr. Rutherford agreed that he was a supervisor for purposes of the OHSA. He agreed that he had read and understood the restrictions outlined by the mandatory medical. He agreed that Mr. Slack had both the right and duty to report the existence of any hazard he was aware of. He stated he was aware of his duty to take every precaution reasonable in the circumstances to ensure the safety of workers. He agreed that requiring a C.O. to perform duties where medical restrictions meant the C.O. was unable to carry out those duties without risk of injury was hazardous. He relied on the WCB finding as to fitness here. Yet finally he agreed that the OHSA does not make the WCB responsible for workers' health and safety. He agreed that that responsibility rests with the employer. He also, although reluctantly, agreed that a C.O. with the restrictions outlined in the mandatory medical would be put at risk by various duties involving restraining inmates or lifting inmates.

63. Mr. O'Rourke acknowledged that an employee does not have to use the words "health and safety" to initiate a work refusal under the OHSA. He also stated that he, Mr. Cardoza, and Mr. Conry determined that no health and safety issue was involved here. When asked if that meant no health or safety issue arose where there was conflicting medical evidence regarding restrictions on a C.O.s fitness for duty, Mr. O'Rourke relied on the WCB decision as the "basis of the decision we made on the information we had". In the next breath he stated that it was "a given" that a supervisor had a duty independent of WCB to take every precaution reasonable in the circumstances to protect a worker.

64. The employer argued that it considered the mandatory medical but accepted the decision of the WCB as to fitness. That explanation does not address the employer's independent obligations under the OHSA and the explanation does not withstand scrutiny in any event. If the employer accepted the WCB 's finding it would have subsequently accepted the health and safety issue and would have reversed its position on the suspension once the WCB determined that there was evidence of ongoing total disability after October 29, 1996 which included the period of the suspension. The fact is the employer relied on the WCB findings when it was convenient and not otherwise. It is not my jurisdiction to make any determination with respect to whether by this conduct the various individuals breached their obligations under the OHSA to take every precaution reasonable in the circumstances to protect the worker, but the evidence speaks to the employer's motive in penalizing Mr. Slack.

65. Mr. Conry concluded that Mr. Slack had called the Ministry to distort the issue because he believed that Mr. Slack had been involved in work refusals before, and in meeting with Mr. Cardoza, Mr. Slack had requested a union representative, not a health and safety representative. In Mr. Conry's view Mr. Slack did not indicate there was any refusal based on his medical condition. The length of the suspension was thought necessary as a deterrent. In Mr. Conry's words the supervisor is responsible for health and safety throughout the institution and the employer must remain in control at all times. Mr. Conry asserted the need to comply with direction and pursue recourse after compliance. Mr. Conry agreed that a C.O. who refers to a medical letter citing limitations on his ability to perform duties is raising a health and safety concern should they be required to perform those duties, but only in the first instance. In his view, once considered and an order given, the C.O. should comply with the order.

66. While this view is consistent with an "obey now, grieve later" approach, it runs directly counter to the policy of the OHSA and the various obligations it creates, even in the more restricted regime of a correctional facility. In the usual case the right to refuse unsafe work overrides the traditional "obey now, grieve later" approach. The scheme of the OHSA provides a mechanism for third-party intervention and determination as to whether the worker is required to comply with that order, and where, in a correctional facility, it is asserted that the condition is not a normal condition of the work. That is part of the limited right to refuse work. As I noted in my oral remarks the fact of only a limited right to refuse by employees in a correctional facility surely only enhances the responsibility of the employer and its supervisors to fulfill their obligation to take every precaution reasonable in the circumstances to protect the worker.

67. The issue before me is whether the employer penalized Mr. Slack either because he sought enforcement of the OHSA or its regulations or because he was acting in compliance with those provisions. Mr. Slack was acting in compliance and was seeking the enforcement of the OHSA when he asserted he was not fit for full duties and requested an accommodation and union representation. To the extent that the employer's representatives had disagreed that his assignment to full duties would constitute a health and safety hazard, Mr. Slack was seeking to challenge that determination prior to being required to engage in the work, and, if necessary, challenge it by way of third-party intervention. By virtue of his actions he engaged the provisions of section 43 of the OHSA and, in light of the contents of the mandatory medical, he had reasonable grounds on which to assert a health and safety risk that was not a normal condition of his work as a C.O.

68. When the employer chose not to accommodate Mr. Slack's stated restrictions pending further medical investigation, and required Mr. Slack to choose between working full duties or refusing, he refused. There can be no doubt that he was asserting a health and safety issue when he repeatedly relied on the contents of the mandatory medical.

69. There was a refusal to work. One can only determine whether that refusal was culpable after one answers the question of whether there is a health and safety issue being raised in the context of the refusal to perform that work. Any refusal is an act of insubordination. The issue is whether it is an act that will attract discipline or is it an allowable act protected from discipline because of the overriding concern for the protection of workers' health and safety. When Mr. O'Rourke says that Mr. Slack was not being punished for a refusal because there was no indication that there was a "work refusal" it simply ignores what is actually happening. The employer disciplined Mr. Slack for refusing an order to go to his assigned post and perform work. The employer ignored the possibility that the doctor might be right about Mr. Slack's ability to safely perform the assigned work and disciplined Mr. Slack for raising the issue.

70. In order to refuse initially, the worker need only have a subjective belief that his or any other worker's health or safety is at risk. It is the Ministry of Labour inspector's investigation that is designed to assess the reasonableness of that belief. Although making no order, the inspector makes clear his view that the mandatory medical is relevant and in fact, is overriding, as to the assessment of whether it is reasonable to conclude there is a health and safety risk in an assignment to full duties. Regardless of that conclusion, the employer disciplined.

71. Mr. Slack was suspended on both occasions because he refused to work. That refusal to work arose as a result of his health and safety concern. In so refusing Mr. Slack was both acting in compliance with the OHSA and seeking its enforcement. In issuing the suspensions the employer penalized Mr. Slack in violation of section 50(1) of the OHSA.

72. Similarly the subsequent memo demanding a return to full duties or a removal from payroll, can only be seen as an attempt to further intimidate or threaten Mr. Slack with employment consequences should he refuse to report for full duties, notwithstanding the employer's clear understanding by this point that Mr. Slack was asserting a health and safety risk to such a return to work, a risk still reasonably supported by medical evidence.

73. In conclusion, I find that the employer violated section 50(1) of the OHSA by suspending Mr. Slack both on November 10, 1995 and on November 27, 1995. I confirm the oral order that Mr. Slack be compensated for any and all wages and benefits lost as a result of the November 27, 1995 suspension, including seniority. In addition, Mr. Slack is to be compensated for any wages and benefits lost, (including seniority) by virtue of the November 10, 1995 suspension. This would include payment for lost premium pay. The employer is directed to remove the letter of suspension dated November 27, 1995 from Mr. Slack's records and is further directed to remove paragraph four from the memo dated December 21, 1995. Finally the employer is directed to post the notice attached to this decision as Appendix "A" in the workplace for a period of 30 days in a place where it is likely to come to the attention of employees.

74. I will remain seized should the parties have any difficulty implementing this remedial order.

Appendix 'A'

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

THIS NOTICE IS BEING POSTED BY ORDER OF THE ONTARIO LABOUR

RELATIONS BOARD FOLLOWING A HEARING IN WHICH THE CROWN IN RIGHT OF

ONTARIO (MINISTRY OF THE SOLICITOR GENERAL AND CORRECTIONAL SERVICES)

(METROPOUTAN TORONTO WEST DETENTION CENTRE), THE ONTARIO PUELIC

SERVICE EMPLOYEES UNION AND MR. JAMES SLACK HAD FULL OPPORTUNITY TO

CALL EVIDENCE AND MAKE SUBMISSIONS.

THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT THE CROWN IN

RIGHT OF ONTARIO (MINISTRY OF THE SOUCITOR GENERAL AND CORRECTIONAL

SERVICES) (METROPOLITAN TORONTO WEST DETENTION CENTRE), VIOLATED

SECTION 50(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT IN SUSPENDING

MR. J. SLACK ON NOVEMBER 10 AND NOVEMBER 27, 1995 AND ORDERED FULL

COMPENSATION FOR ALL WAGES AND BENEFITS LOST.

CORRECTIONAL OFFICERS ARE DIRECTED TO THE PROVISIONS OF THE

OCCUPATIONAL HEALTH AND SAFETY ACT SPECIFICALLY:

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.

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 30 consecutive days.

DATED this 1ST day or MAY 1998