1390-99-OH Bonita Almond, Applicant v. Ontario Property Assessment Corporation, Responding Party.

BEFORE: Bram Herlich, Vice-Chair.

APPEARANCES: Donald K. Eady, Bonita Almond, Ross Shropshire and Ed. Ogizowski appeared on behalf of the applicant; Ted McDermott, Patricia Ross, Mario Vittiglio and Sharon Steckley appeared on behalf of the responding party.

DECISION OF THE BOARD; December 15, 2000

1The Ontario Property Assessment Corporation (“OPAC” or the “employer”) came into being on the last day of 1998. OPAC, as its name suggests, is engaged in property assessment for various purposes across the province. The functions it performs were previously the responsibility of the Property Assessment Division of the Ministry of Finance of Ontario (the “Ministry”). In the shift from a provincial government operation to one of an independent non-profit corporation, controlled, we were told, by the “municipal sector”, much of the existing institutional substructure, including the employment of the former public service employees, was preserved.

2Thus, and at least in common parlance, OPAC might be viewed as a successor employer to the Crown. However, by virtue of the then relatively recent amendments to the Crown Employees Collective Bargaining Act, the successor rights provisions of section 69 of the Labour Relations Act, 1995 had no application to the transfer of operations from the Ministry to OPAC.

3The Ontario Public Service Employees Union (“OPSEU” or the “union”) represented employees of OPAC in their previous employment with the Ministry. OPSEU filed an application for certification simultaneous with the transfer of operations to OPAC. A representation vote was held in January of 1999 and a majority of the bargaining unit employees who exercised their franchise indicated their wish to (continue to) be represented by the union. For reasons that were never fully explained to me, however, a certificate reflecting the results of that vote did not issue until August of 1999.

4Bonita Almond was discharged from her employment with OPAC on May 28, 1999. Thus, at the time of her discharge, there was no collective agreement in place. Indeed (and despite the results of the representation vote), neither was there a certified bargaining agent to formally represent OPAC employees.

5Ms. Almond asserts that she was discharged, at least in part, as a result of having acted in compliance with or having sought the enforcement of the Occupational Health and Safety Act (“OHSA”). Thus, it is claimed the discharge was contrary to the provisions of section 50(1) of OHSA. Alternatively, even if I am persuaded that there was no violation of the OHSA, I am invited to exercise the discretion conferred upon this Board under section 50(7) of the OHSA to reinstate Ms. Almond to her employment, a result which is said to be just and reasonable in all the circumstances.

6OPAC takes a different view of matters. First, it asserts that its decision to terminate the applicant was entirely free of any improper anti-safety motives and that no violation of OHSA can therefore be found. Second, it claims that Ms. Almond’s termination was “non-disciplinary” and that the discretion contemplated by section 50(7) therefore has no application to the instant case. Finally and in the alternative, even if such discretion is otherwise available, this is not a case for its exercise.

7This matter consumed eight days of hearing during which time 5 witnesses testified, some at considerable length. Some 40 documents were marked as exhibits. In assessing the evidence of the witnesses who testified, I have considered all of the usual factors: the demeanour of the witnesses when giving their evidence, their apparent desire to tell the truth and to resist the tug of self-interest, the ability of their testimony to withstand the test of cross-examination and, of course, simply what seems most probable or likely in the circumstances.

8In its broad outlines, the essential facts giving rise to this application are not seriously in dispute. By and large I am satisfied that all of the witnesses who testified before me testified to the truth, as they understood it. I must, however, comment about two of the principal witnesses: the applicant and her immediate supervisor.

9Ms. Almond can undoubtedly be an irksome and demanding employee. Even in the manner in which she gave her evidence, she displayed a consistently uncompromising view of her own entitlements. She was not to be bettered by her employer or her cross-examiner. At times her exuberance verged on the fanciful. But while I take a cautious and decidedly dim view of some of her more dramatic assertions (that she did not trust any of her managers, that they were all liars), it is also clear that despite her hyperbolic presentation, Ms. Almond may well have had good reason to be circumspect when it came to reposing implicit trust in her employer.

10Sharon Steckley was Ms. Almond’s immediate manager and was responsible for making the recommendation which resulted in her discharge. Commencing in mid-January 1999, Ms. Steckley began to keep a diary pertaining to Ms. Almond. The entries span events from December 30, 1998 up to Ms. Almond’s discharge on May 28, 1999. The precise and somewhat curious circumstances which led to the keeping of this diary will be shortly outlined. For the moment it is sufficient to note that there are reasons to be cautious in accepting this diary (which formed the basis for much of Ms. Steckley’s evidence) as an entirely accurate or precise record of all of the events contained or referred to therein. First, it is clear that at least the initial entries were not made contemporaneously with the events documented. Second, there were clear instances of “additions” having been made to the diary “after the fact”. Further, the entire tone and purpose of the diary perhaps serves to undermine its utility. And finally, the diary is obviously not (nor, in fairness, was it presented as) a comprehensive record of all the relevant events in this case.

11Having raised these concerns, however, I do not mean to suggest that the diary or Ms. Steckley’s evidence generally, contained deliberate untruths. On the contrary, I am satisfied that Ms. Steckley, like the other witnesses in these proceedings, did her best to recount the truth as she recalled it. Indeed, there are aspects of conflict between the evidence of these two witnesses which the diary may well serve to clarify, particularly where there are questions regarding the timing of certain events. In that regard, Ms. Almond’s inability to recall specific dates (or even, to some extent, occasions upon which she called her difficulties to the attention of the employer or the specific reasons for particular absences) is not the least surprising given that she felt no reason, at the time, to record the flow of events in the kind of manner chosen by Ms. Steckley.

12I should note, however, that while there were discrepancies in the evidence, I have by and large, not found these to be ultimately critical to my determination. Again, for the most part, I have placed greater reliance on Ms. Steckley’s evidence about the timing of events and the nature of various absences. However, as will also be clear, just as Ms. Steckley’s diary may provide a relatively more reliable indicator of chronology, it may also serve to assist in the determination of aspects of the employer’s motive in this case.

13I turn now to a consideration of the relevant events which culminated in the applicant’s discharge.

14Very shortly after Ms. Almond commenced her employment with OPAC, an incident transpired which while, on its face, is not apparently directly relevant to these proceedings, is one which I view as ripe with significance. If nothing else, it sets a clear and, unfortunately, pathological tone for all of the subsequent dealings between Ms. Almond and her employer.

15Ms. Almond needed to regularly attend certain appointments on a bi-weekly basis. In order to facilitate that she wished to leave work early on those days and make up the lost time on subsequent days. The employer has a written policy which is used to accommodate precisely those types of needs. It contemplates that such lost time is to be made up within two weeks. Despite that, Ms. Almond was instructed by Ms. Steckley that she would be required to make up any lost time the very next day (there were other aspects of the exchange which fuelled the applicant’s consternation – such as a requirement that a request be made in writing and Ms. Almond’s concern that Ms. Steckley was probing a little too deeply into the reasons for the appointments – I do not need to consider these).

16Unknown to Ms. Almond (at least at the time), the instruction that she be required to make up her absences the following day was one which had originated with Mario Vittiglio. At the material times, Mr. Vittiglio was the acting Assessment Commissioner of the York Regional Assessment Office (one of the 31 regional assessment offices which comprise OPAC) and as such was Ms. Steckley’s supervisor.

17Although she opted to say nothing to Ms. Steckley about her concerns at the time she was advised of the requirement to make up missed time the following day, Ms. Almond felt that the requirement was unfair in view of the explicit terms of the employer’s written policy. As a result, she arranged, still unaware that he was the source of the unwelcome requirement, to discuss the matter directly with Mr. Vittiglio.

18A meeting was held between Ms. Almond and Mr. Vittiglio; Ross Shropshire, who had held some union positions under the former Ministry operations, attended as well. Ms. Almond expressed the view that the treatment she had received from Ms. Steckley (including the make up requirement and the questioning about the purpose of her appointments) amounted to harassment. During the meeting it emerged that Mr. Vittiglio was unaware of the employer’s written policy regarding make up time. And while he did not agree that Ms. Steckley’s inquiry about the reason for the absences was problematic, he did assure Ms. Almond that she would be permitted to make up lost time in accordance with the policy (i.e. within two weeks rather than only on the day following the missed time). He undertook to speak to Ms. Steckley to insure that would be the case. It appears that Ms. Almond’s concerns about when she would be required to make up missed time were resolved on that basis.

19Despite that, however, it is clear that this series of events seriously and entirely unnecessarily had a significant and deleterious impact on Ms. Almond’s employment circumstances and, in particular, on her relationship with her immediate supervisor, Ms. Steckley.

20In final argument, the employer asserted that Mr. Vittiglio had explained to Ms. Almond that he, not Ms. Steckley, had been the source of the requirement that she make up missed time the following day. The evidence does not support that finding. While Mr. Vittiglio advised Ms. Almond that he had imposed the requirement that the “arrangement” be formalized in writing and that he was previously unaware of the policy, it does not support the conclusion that he specifically advised Ms. Almond that he, not Ms. Steckley, had imposed the next day make up requirement. But even if I am mistaken in that conclusion, there was no evidence whatsoever that Mr. Vittiglio explained to Ms. Steckley that he had clarified to Ms. Almond that he, not Ms. Steckley, was responsible for Ms. Almond’s view that that she had been the subject of Ms. Steckley’s “harassment”. He did, however, clearly communicate to Ms. Steckley that Ms. Almond had expressed the view that Ms. Steckley was harassing her.

21There is little doubt in my mind that the entire course of ensuing events may well have unfolded differently, had Mr. Vittiglio taken the time to clearly explain the situation to both Ms. Steckley and Ms. Almond. Instead, Ms. Almond emerged without being disabused of the mistaken notion that Ms. Steckley was harassing her. Similarly, and at least equally importantly, Ms. Steckley emerged with the view that Ms. Almond unfairly believed herself to be the victim of Ms. Steckley’s “harassment”.

22But that was merely the beginning of the sowing of the seeds of pathology. For if Mr. Vittiglio’s handling of the matter may have left something to be desired, Ms. Steckley’s response to the situation did little to ensure future harmony. Thinking herself to be the unfair victim of Ms. Almond’s harassment claim, Ms. Steckley opted to begin to keep the diary described earlier. It is abundantly clear, however, that (while there is obviously nothing improper, per se, in keeping reliable records) a simple initiative to directly discuss the matter and clarify expectations and misunderstandings would have served a far more productive purpose, than the keeping of a clandestine diary.

23There is no dispute that, over the course of her employment with OPAC, Ms. Almond’s record of absences was truly impressive. From the commencement of that employment on December 31, 1998 to April 26, 1999, Ms. Almond’s “Employee’s Credit Record” discloses some 40 instances of absences for full or partial days. It is this poor attendance record which the employer claims accounts for her termination on May 29, 1999. The absences are for a variety of reasons. Over 70% of the time lost is attributable to two protracted absences from February 11 to March 5, 1999 and from April 14-26, 1999. Those absences were supported by medical certificates (indicating, in the more recent one, pneumonia as the reason). The employer raises no issue as to the bona fides of these absences. Indeed, it accepts that there were legitimate reasons for all of the applicant’s absences.

24The applicant was (and may well continue to be) of the view that poor workplace conditions were largely responsible for her physical reactions and consequent inability (at least until the end of April 1999) to attend work with a reasonable degree of regularity. She believes that it was an allergic reaction on her part to the presence of dust and dust mites in the workplace which led to many of her absences.

25In view of the vague and unspecific nature of the applicant’s evidence on the point, I accept the employer’s evidence that Ms. Almond’s concerns were not raised with management until on or about March 11, 1999, shortly after her return from the first of her two protracted absences. However, I note that, consistent perhaps with its view that all of the absences were legitimate, there is no doubt that Ms. Almond’s physical suffering (whatever its cause may have been) was evident and abundantly clear to both management and her fellow employees. Although the precise extent, source and character of the condition may not have been the subject of any general consensus, neither Ms. Steckley nor Mr. Vittiglio denied seeing its obvious effects in the form of rashes, hives, blotches and the like, evident on Ms. Almond’s person from time to time.

26But even if the issue was not explicitly raised with her employer prior to March, Ms. Almond (for reasons she believes were related to her physical response to conditions in the workplace) missed significant amounts of time from work in February. And when it appeared, at the beginning of that month, that she was about to have a protracted absence (ultimately of some 4 weeks duration), her attendance pattern caught the attention of her employer. Ms. Steckley prepared the first of what would be a series of reports for Mr. Vittiglio documenting Ms. Almond’s absences. And Mr. Vittiglio began what would be a series of consultations with Jane Mizanski, who, at the time, was the employer’s senior human resources consultant.

27It is perhaps curious (and a fact which the applicant asserts is of great significance), that, despite the collective efforts of Mr. Vittiglio, Ms. Steckley, and Ms. Mizanski, at no time during the unfolding of any of these events did any of them ever even consider advising Ms. Almond that, from the employer’s point of view, her attendance was problematic. Instead, the advice to “continue monitoring” the situation (advice which seems to have been repeated so often that it may have risen to the stature of a mantra) was applied. Perhaps even more curious, when it came to absences for which Ms. Almond sought prior approval, no such approval was ever withheld. Instead the leaves were granted and the absences added to the list of those upon which the employer ultimately relied in terminating her employment. (Although it should perhaps be noted that, in what may be a curious demonstration of its consistency, the employer, even at the time of her discharge declined to provide Ms. Almond with any reasons for its decision.)

28In any event, it appears that from February or March until her termination in May, Ms. Almond and her employer were proceeding along very separate tracks of endeavour. Ms. Almond was concerned with rectifying what she thought were poor workplace conditions contributing to her poor health. The employer, for its part, appears to have been consumed in some kind of unarticulated, unexplained and certainly clandestine project of monitoring and tracking Ms. Almond’s absences with no hint of sharing its concerns with her.

29Ms. Almond’s efforts to do something about improving what she believed to be poor workplace conditions were persistent and yielded some limited results. For example, in March some steps were taken (though it is less than clear the employer played any direct role) to provide some extra cleaning of her work area by building maintenance staff (provided by the employer’s landlord, the Ontario Realty Corporation) and some plastic covering on her work chair.

30In April, the employer’s premises were scheduled for an annual carpet cleaning. Ms. Almond was not impressed with the results of that job. Indeed, after the job had been performed she retrieved the remains of a cookie which she had earlier placed under her desk in a deliberate effort to gauge the thoroughness of the cleaning. She went to see Mr. Vittiglio to show him the retrieved remains and also to share with him some extracts from a “medical book” which she thought would help to explain aspects of her condition and allergies to dust and dust mites. While Mr. Vittiglio declined to share the medical information, the meeting did result in the employer making arrangements to have some testing of the workplace performed by an independent company.

31The testing was performed on April 7, 1999. Although Ms. Almond was moved from her regular work area to facilitate the testing, she was moved to an area where she could not view the procedure and was not advised of the reason for her reassignment or that the testing was being performed. Neither were any members of the Health and Safety Committee advised or requested or permitted to observe the testing. It appears to have consisted of taking samples (by affixing and then removing pieces of transparent adhesive tape) from various areas on a “sporadic” basis. The samples were analyzed and a report was prepared indicating that there was no evidence of the presence of anthropods.

32Ms. Almond was unhappy when she learned of the test results. She felt the timing (i.e. following on the heels of the annual carpet cleaning) of the testing and the methodology employed were each unsatisfactory. She made her views known to Mr. Vittiglio and told him that she would call the Ministry of Labour to look into the matter further. Although it was not suggested that Mr. Vittiglio communicated any such intention to Ms. Almond at their meeting, he subsequently determined to call a meeting of the Occupational Health and Safety Committee to consider the matter further.

33On that same day, the committee (which had not met since the transfer of operations from the Ministry to OPAC) reviewed the matter, conferred with Ms. Almond and recommended that a different company conduct another test.

34The very next day, however, an inspector from the Ministry of Labour attended at the worksite as a result of a telephone conversation he had had with the applicant the previous day. The applicant was not at work when the inspector arrived – she had left at 11:30 a.m. complaining that she was suffering the effects of “bites”.

35The inspector concluded his investigation and prepared a report which included three orders directed at the employer. His report indicates that he was there to inquire into the a complaint alleging “poor air quality, ‘unclean’ working environment, dust and dust mites ‘all over’ and unclean bathrooms”. He observed in his report that while the report which had resulted from the recent independent testing “leaves room for conjecture”, that the employer’s efforts indicated a desire to address the concerns raised by the worker. He observed dust accumulations in the workplace but concluded that the air quality seemed quite acceptable at the time of his visit. He suggested that the employer obtain further information as to the housekeeping procedures for the workplace and that air filters for HVAC output be checked to insure there was no dispersal of contaminants.

36The three orders that were issued by the inspector were (fairly) characterized by the employer as “generic”. They did not relate specifically to any of the concerns raised by the applicant but, rather, were directed at insuring the proper functioning of workplace health and safety procedures. (It that regard it should be recalled that these events and the concerns raised by the applicant resulted in the first meeting of the joint health and safety committee since the inception of OPAC.).

37On the following day, April 14, 1999, a representative of a second independent testing company attended at the workplace. The report subsequently prepared indicates that some 18 “insect monitors” were placed in various locations and were retrieved some five days later. (The applicant was not at work on either of those days - she was absent from April 14-26 with pneumonia.)

38The report concluded that four identical insect specimens were found and concluded as follows:

…These are in the midge family and could have entered through a window or screen. These non-biting insects should not adversely effect [sic] working conditions. The level of activity is very low.

• NOTE: There are no biting or stinging insects here.

[emphasis in original]

39At its meeting on April 22, 1999 the joint health and safety committee reviewed the report, accepted its findings and concluded that no further action was warranted.

40Sometime on or after April 27, 1999 and following her return to work from her bout of pneumonia, the applicant was apprised of and provided a copy of the test results. And while she may not have been satisfied with those results either, it is clear that the issue of concerns about dust and dust mites was one which did not surface again between these parties from April 27, 1999 until the applicant’s termination a month later. Indeed, it would appear that there was no pressing need for the issue to be addressed. For in the one-month period which culminated in her discharge, the applicant was able to provide regular and uninterrupted attendance at work to an extent previously unmatched during the entire course of her employment. She attributed this turnaround to the success of medication in alleviating her condition. (In that regard, a particular allergy serum had been prepared for her. However, for reasons which I am satisfied were not limited to but included some dereliction on her part, the serum was not procured until some time in April; it is also less than clear when the applicant began taking it.)

41Of course in the period leading up to (and following) the applicant’s return to work on April 27, 1999, Ms. Steckley had continued to keep entries in her diary pertaining to the applicant and her attendance. On February 12, 1999 she had prepared and delivered to Mr. Vittiglio the first of a series of attendance reports relating to the applicant; the second was delivered on March 31, 1999; the third and final report on April 22, 1999. Also on April 22, 1999 (just prior to leaving for 2-3 weeks of vacation) Ms. Steckley entered a calculation in her diary indicating that Ms. Almond had been absent from work 45.8% of the time.

42In or about mid-May, the employer, through its corporate office, initiated a review of all contract staff. Essentially, (and in addition to “regular” employees) all persons previously employed by the Ministry as unclassified contract staff had been offered continuing employment with OPAC effective with the changeover in operations. Those offers, including the applicant’s, contained certain common terms. Each affected employee was offered an employment contract effective December 31, 1998, the contract to be of “up to one year’s duration”. Both the “generic” letter and the letter addressed (for signature) to individual employees included the following:

While we expect that your contract would last one year, it is subject to termination for cause or upon two weeks’ notice or pay in lieu of notice

43That description is similar to the terms of the employer’s corporate policy for contract unclassified employees which was also sent to each prospective contract employee along with the offers of employment. That policy includes the following:

Notice of Termination

10. OPAC may terminate the employment of a contract unclassified employee at any time with two (2) weeks notice or pay in lieu of notice.

Discipline/Dismissal

22. It is understood that it is the right of the employer to discipline or dismiss employees for just cause.

44Ms. Mizanski explained that it was not until May that the employer got around to reviewing the employment of all of its contract staff. Just prior to the changeover all relevant Ministry unclassified employees had simply been offered continuing contracts without any particular assessment by OPAC of the feasibility or desirability of continuing any particular contract. That review began in May. In communications which came from David Blakely, the corporate Director of Field Operations, Local Regional Assessment Commissioners were asked to initiate reviews of all of their contract staff. (There was no evidence or suggestion before me that Mr. Blakely had any involvement or even knowledge about the applicant’s health and safety concerns or her activities in that regard.) This process resulted in the termination of the employment of some 40 (of the 371) contract employees employed by OPAC throughout the province. Ms. Almond was among this group. Ms. Mizanski prepared two generic termination letters (one in which notice was provided; another one providing pay in lieu) that were used in this process; the termination letter Ms. Almond ultimately received was in that (latter) form.

45Returning to the review initiated by Mr. Blakely, Mr. Vittiglio’s response was to ask Ms. Steckley to prepare recommendations for the “renewal/extension” of the employment of the two contract employees in the data services and mapping section under her supervision. By memo dated May 21, 1999 Ms. Steckley advised Mr. Vittiglio that she recommended that another contract employee be retained but insofar as Ms. Almond was concerned, she offered the following:

I recommend that her contract is not renewed/extended. Her attendance has proven to be a chronic problem. Over the five months she has been employed she has been absent over 40% of the time.

46Of course (and as Ms. Steckley candidly conceded in her evidence), the arithmetic calculation she relied upon was no longer accurate. For it was the calculation as of April 22, 1999 (recorded in her diary) upon which she relied. Thus, it failed to account for the month of perfect attendance Ms. Almond had achieved subsequent to her last illness. However, even with that improvement, Ms. Almond’s absenteeism rate, which would have been closer to 35%, still left much to be desired.

47On May 28, 1999, Ms. Almond was summoned to a meeting with Ms. Steckley, Mr. Vittiglio, and Larry Clark who attended from the employer’s human resources department. She was advised of her termination. At her request, Bill Warren (who had held some union positions under the Ministry operations) was permitted to join the meeting. Despite the repeated requests from both Ms. Almond and Mr. Warren the employer refused to provide any reason for its decision. Mr. Clark would only go so far as to offer that the employment relationship “did not work out”. Ms. Almond was advised orally and in writing that she would receive two week’s pay in lieu of notice. Shortly after the meeting concluded, Ms. Almond left the premises.

48It is clear that, consistent with its general handling of Ms. Almond’s employment, there was an agreement between those attending the meeting on behalf of OPAC that no reasons or explanation for her termination were to be provided to Ms. Almond. Indeed, Ms. Mizanski testified that Mr. Vittiglio had been specifically advised not to discuss reasons at the termination meeting. She explained that previous experience (under the Ministry) had shown that providing reasons for the discharge of unclassified employees created a subject for discussion and dispute the employer preferred to avoid. As Ms. Mizanski offered: “no matter what reason is given it won’t be accepted positively so it’s best not to say anything”.

49Of course that deliberate silence was consistent with the employer’s unbroken silence about attendance concerns during the entire course of Ms. Almond’s employment. Ms. Mizanski explained that while she might not deny the possibility of individual exceptions, generally managers would not (and certainly would not be advised by her to) raise attendance concerns or apply progressive discipline in the case of contract employees. One of the reasons she advanced for that approach was tied to the fact that contract employees are not eligible for paid sick leave and thus their absences generate no cost for the employer. In her view contract employees either meet the “standard” or they are terminated or not renewed.

50In any event, once it was required to respond to the present application, the employer was no longer mute about the reasons for its decision to terminate Ms. Almond’s employment. Both Mr. Vittiglio and Ms. Steckley testified that it was Ms. Almond’s poor attendance which led to the decision. Further they raised no issue as to the bona fides of any of those absences. And finally, they each contended that Ms. Almond’s efforts, complaints and the fact that she invoked the health and safety procedures available to her under the OHSA played absolutely no part in the decision to terminate her employment.

51I must now decide whether Ms. Almond’s termination was an improper reprisal prohibited by section 50(1) of the OHSA. If not, I am required to determine whether the jurisdiction contemplated under section 50(7) of the Act is available in this case. And, finally, if that discretionary authority is available to me, I must decide whether and, if so, how it ought to be exercised in the circumstances of this case.

Was the termination an unlawful reprisal?

52Section 50 of the OHSA provides as follows:

50. (1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.

(3) The Board may inquire into any complaint filed under subsection (2) and section 96 of the Labour Relations Act, 1995, except subsection (5), applies with all necessary modifications as if such subsection, except subsection (5), is enacted in and forms part of this Act.

(5) On an inquiry by the Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.

53The parties referred me to copious volumes of caselaw. However, the essential legal issue raised by this application is neither difficult nor controversial. Indeed, while the parties obviously urged me to come to different results, they were in basic agreement as to the analytic path to be taken to arrive at those results.

54The Board has taken many opportunities to describe the nature of its inquiry in a case such as the present one. In H.H. Robertson Inc., [1991] OLRB Rep. April 492 at paragraph 63 (and following) the approach was articulated as follows:

63. Section 24(1) [now 50(1)] defines the worker’s substantive rights. It prohibits an employer from penalizing a worker who has acted in, or sought compliance with the Act. But section 24(1) does not require that the employer establish “just cause” for its position. The presence of cause may bolster an employer’s explanation for its actions, just as the absence of cause may suggest an improper motive, however, under section 24(1) “just cause” or “fairness” are not the primary focus. The issue is: was the employment consequence complained of imposed “because” the worker was engaged in legally protected activity. That is a question of motive.

64. On the issue of motive, the Board has adopted an approach similar to that applied in unfair labour practice cases: if the employer was improperly motivated IN WHOLE OR IN PART its actions are illegal…The safety issue need not be the only or even the dominant employer motivation. It is sufficient if it is one of the reasons for the employer action under review. (See Commonwealth Construction, [1987] OLRB Rep. July 961 and more recently, Bilt-Rite Upholstering Co. Ltd., [1990] OLRB Rep. July 755.)

55It was not disputed that the applicant in the instant case, at least through her actions to involve the occupational health and safety inspector, had acted in compliance with or sought the enforcement of the OHSA. The question is whether her termination was effected (even only in part) because of that protected activity. And of course, given that there is no issue that the applicant did engage in protected activity prior to her termination, the employer must shoulder the reverse onus to persuade me that activity played no part in its decision.

56But again, the principal object of this portion of my inquiry is not whether “just cause” has been demonstrated for the applicant’s discharge. Indeed, were this an arbitration proceeding to review the discharge against a standard of just cause, it appears to me that the likelihood of the applicant’s success would be quite significant. But I examine the reasons for the employer’s decision not to measure their sufficiency but rather to shed light on the question of motive.

57In performing that analysis, I am satisfied that the reasons offered by the employer for its decision (whatever their reasonableness or sufficiency may otherwise be) constitute all of the reasons for the applicant’s discharge and that her protected health and safety conduct played no part in that decision.

58In arriving at that conclusion, I have been influenced by the following factors. First, it was clear that from at least February of 1999 (and well before the applicant had raised any health and safety issues) OPAC had concerns with the applicant’s attendance. And while I may be less than impressed with the fashion in which those concerns were dealt, it is also clear that they were the focus of considerable employer attention involving the input of Mr. Vittiglio, Ms. Steckley, and, on an ongoing basis, Ms. Mizanski. Further, while these concerns continued throughout the relevant period, their origins clearly predated the raising of any health and safety issues. Thus, however one might characterize the nature (of at least the origins) of the employer’s motive, “anti-safety” animus would simply not figure in. Indeed, even the unfortunate incident described earlier in this decision which caused Ms. Steckley to begin to keep her diary and which might be described as evidencing a certain animus in relation to the applicant, clearly can have no link to health and safety concerns and can be seen to fall under the general heading of “attendance concerns”.

59Further (and again whatever may be said about the manner in which the employer opted to deal with the situation), these were real and legitimate concerns.

60And while the employer may have utterly failed in devising any useful or productive strategy to deal with these concerns, I also find it extremely significant that the immediate corporate impetus which triggered the process which resulted in the decision to terminate the applicant’s employment came from a source which had no prior involvement in or knowledge of any of the health and safety concerns or activities of the applicant.

61The employer’s evidence clearly establishes that Ms. Almond’s termination was part and parcel of a province wide process which resulted in the termination of the employment some 40 of OPAC’s 371 contract staff.

62In other words, I accept the employer’s evidence that as a result of and in accordance with a central corporate initiative, the continuing employment of the applicant (like all other contract employees) was reviewed. In performing this review, the employer concluded that as a result of problematic attendance (an issue which had crystallized in the employer’s mind well before any health and safety issues were raised), her employment ought not to be maintained. I am also satisfied that the applicant’s health and safety concerns and invocation of health and safety procedures did not figure in the employer’s decision.

63Thus, and to the extent that this application asserts that the applicant’s termination constitutes an unlawful reprisal, the application is hereby dismissed.

Is section 50(7) available in this case?

64The applicant asks that I exercise the discretion conferred upon this Board to substitute another penalty in lieu of the discharge that was imposed.

65Section 50(7) provides as follows:

50. (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.

66The employer, in a novel argument, asserts that the Board’s power to substitute penalty is restricted to cases where employees have been discharged (or otherwise disciplined) for disciplinary reasons. In that regard, OPAC took pains to establish that it was the applicant’s attendance (or lack thereof) which was the basis for the termination. There was no dispute that there were legitimate and bona fide reasons for all of the applicant’s absences. The employer was simply responding to its concern about the applicant’s apparent inability (through, it is conceded, no fault of her own) to regularly attend at work. Thus, since there was no question of culpable conduct on her part, her discharge cannot be characterized as disciplinary and, hence, the discretion contemplated by section 50(7) is not available. Such discretion is simply not available in relation to a non-disciplinary discharge.

67The applicant appears to accept that (absent any finding of improper motive contrary to section 50(1) of OHSA) her termination was non-disciplinary in nature. It was not, for example, suggested that despite the employer’s characterization, that the discharge was, in reality, disciplinary.

68Further, apart from asserting that the conditions for the exercise of the Board’s discretion under section 50(7) are established (pointing chiefly, in that regard, to the absence of any specific penalty in the applicant’s contract of employment), the applicant offered little in the way of a compelling interpretive or policy basis to dispute the interpretation advanced by the employer.

69The Board has reviewed the purpose of and approach to section 50(7) on a number of occasions. In Commonwealth Construction Co. [1987] OLRB Rep. July 961 it described the workings of the section as follows:

35. As well, the wording of subsection 24(7) [now 50(7)] on its face gives the Board the jurisdiction to substitute such penalty as the Board considers just and reasonable, even though the Board has not found the employer to have violated subsection 24(1) and even though the Board “determines that a worker has been discharged or otherwise been disciplined by an employer for cause”. In circumstances such as those in the instant case, where the Board has determined that the employer has not breached the Act in its discharge of an employee, it is both sensible and in accord with the specific wording of subsection 7 for the Board to then inquire whether the employer’s disciplinary response was nevertheless appropriate in all the circumstances. Under subsection 24(2), a worker under a collective agreement has a choice of adjudicative forum where a contravention by an employer of subsection 24(1) is alleged, and the worker may elect to have the matter dealt with either by arbitration or by filing a complaint with this Board. The legislature has set up a mechanism under section 24 whereby the worker can have both the occupational health and safety allegation and the merits of the discipline dealt with in one forum, either final and binding arbitration or through a complaint to the Ontario Labour Relations Board. The scheme of section 24, the impact of subsection 24(3), and the language used in subsections 24(2) and 24(7), support the view that the legislature intended that the adjudicative forum chosen by the worker would deal with both the alleged breach of section 24(1), and, in the event the adjudicative tribunal found the employer had not breached the Act, with the issue of whether the specific penalty imposed by the employer for cause was just and reasonable in all the circumstances. No valid labour relations purpose would be served by reading section 24(7) to any other effect.

70And after citing the previous paragraph, the Board in the H.H. Robertson case, supra, continued (at paragraph 70):

70. Notwithstanding the submissions of the employer in this case, the view expressed by the Board in Commonwealth Construction (as well as the cases referred to therein) is neither novel nor inventive. It rests on the structure of section 24 and the simple proposition that section 24(7) means what it says: section 24(7) relief is available “ON AN INQUIRY BY THE ONTARIO LABOUR RELATIONS BOARD INTO A COMPLAINT FILED UNDER SUBSECTION (2)” just like the “reverse onus” provision (section 24(5)), and the privative clause incorporated by section 24(4). It is the inquiry itself that makes these powers available, not a particular finding of illegality as is the case with section 24(1)/89(4). Quite frankly, we do not see how the words that the Legislature has used can mean anything else, or why 24(7) is necessary at all if not to supplement the authority provided by 24(1)/89(4). (By way of contrast, compare the “no reprisal” language in the Environmental Protection Act, which, like the Labour Relations Act, has no equivalent to section 24(7).) Section 24(7) gives the Board a DISCRETION to review a disciplinary penalty even though there was no improperly motivated reprisal and thus no breach of section 24(1).

71. We shall consider below the EXERCISE of the Board’s discretion in the circumstances of this case. At this point, we note only that the remedial authority under 24(7) is IDENTICAL to that of an arbitrator under 44(9), and it certainly looks as if the arbitrator and the Board are expected to do the same thing: consider the propriety and fairness of the employment consequence under review in light of “all the circumstances” …

71While the specific interpretive point now being advanced by the employer was not before any of the panels just referred to, it is perhaps noteworthy that they each referred to the Board’s ability to review the propriety of a “disciplinary response” or a “disciplinary penalty” – descriptions which would be consistent with the argument being advanced here.

72Having considered the arguments advanced before me, I am persuaded that the employer’s interpretation of the statute is the one to be preferred.

73The section applies to circumstances where a worker has been “discharged or otherwise disciplined”. Those words suggest that the relevant discharges must be disciplinary ones. If there were any doubt about that conclusion, it is dissipated by the subsequent references to whether or not the collective agreement or the contract of employment contains “a specific penalty for the infraction” a phrase which again suggests that the section only has application in respect of “infractions” which might give rise to specific penalties. Again, this connotes a disciplinary response to culpable employee conduct.

74It is highly unlikely that any applicant could, for example, successfully seek to vitiate a legitimate lay off through access to this subsection. Similarly, I am persuaded that it has no application in the instant case where the employer terminated the applicant’s employment pursuant to explicit terms of her contract of employment for reasons which it asserts, and the applicant accepts, were non-disciplinary.

75Thus, I have no jurisdiction to apply the provisions of section 50(7) even if the circumstances of the case might otherwise so warrant.

76In those circumstances there is no need and it would serve little purpose to review the equities of the discharge, as the parties did in their arguments, with a view to determining what is just and reasonable in the circumstances. The manner in which the employer handled the applicant’s employment and termination was less than impressive. It was not, however, unlawful and as I have no authority to alter the employer’s determination, it is not necessary for me to comment further.

77The application is dismissed.

“Bram Herlich”

for the Board