3007-99-OH Daniel J. Cole, Applicant v. Carey Limousine Canada, Responding Party.

BEFORE: Brian McLean, Vice-Chair.

APPEARANCES: Daniel J. Cole on his own behalf; Richard Lynn and Nancy Hazel for the responding party.

DECISION OF THE BOARD; August 9, 2000

1. This is an application under section 50 of the Occupational Health & Safety Act (the “Act”). The applicant, Daniel Cole, alleges that he refused to do certain work because of a health and safety concern and that the employer, Carey Limousine Canada, terminated his employment because of his work refusal.

2. Section 50 and 43 of the Act state in part:

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

(a) dismiss or threaten to dismiss a worker;

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

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

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

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the 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.

(4) On an inquiry by the Board into a complaint filed under subsection (2), sections 110, 111, 114 and 116 of the Labour Relations Act, 1995 apply with all necessary modifications.

(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.

(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.

43. (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.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker's employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his or her work station.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be 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 continues to be 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 continues to be likely to endanger himself, herself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

3. This case involves a simple incident. Both parties agree that the applicant, who worked as a limousine driver for the employer, was called back to the company’s offices to assist in pushing a stalled utility truck out of a garage so that the applicant could pick up the car he was to drive the next day. The applicant ultimately refused to move the truck and his employment was terminated as a result. The applicant asserts that he refused to move the truck because he was concerned about hurting his back. The employer asserts that the applicant never advised it of any back concern and, more importantly, did not advise the company that his refusal was made because he was afraid of injuring his back.

4. The employer called two witnesses in support of its position. Richard Lynn, a dispatcher employed by the company, testified that he called the applicant back to the office to get his assistance with moving the utility truck after he and another employee, Nancy Hazel, had been unable to move it. When the applicant was asked to help, the applicant initially said he would only help if he got paid and that he never mentioned any concern about his back. As a result of the applicant’s position regarding the requirement that he be paid, Mr. Lynn called the company’s president, Mr. Youssef, and advised him of the situation. Mr. Youssef spoke to the applicant directly over the telephone, but Mr. Lynn heard none of their conversation. At the conclusion of the telephone conversation, the applicant turned in his keys and Mr. Youssef told Mr. Lynn that the applicant was no longer employed with the company.

5. Ms. Hazel testified that she and Mr. Lynn had been unable to move the car because she was wearing high heels. She then left the premises and was not present for the conversation between Mr. Youssef and the applicant. She was with Mr. Youssef for a small part of the conversation, but did not hear the whole conversation. Finally, Ms. Hazel testified that the applicant had never advised the company that he had back concerns. He had never complained about his back despite the fact that he frequently had to lift heavy luggage into and out of his limousine.

6. The applicant testified that he arrived at the company’s office and was advised that he was to help push a stalled 4 x 4 vehicle out of the garage so that he could access his car for the next day. He was angry at first because he was wearing a suit and the vehicle was very dirty. He believed the company could have told him ahead of time, so that he could get some old clothes from home.

7. The applicant asked Mr. Lynn whether he was going to be paid for moving the truck. The applicant testified that the reason he asked that question was that he was concerned that if he was working unpaid he might be considered a volunteer, and if he hurt himself he would not be covered by Workers Compensation. The applicant testified that for that reason he told Mr. Lynn that he would not work unless he was being paid.

8. The applicant agreed that Mr. Lynn called Mr. Youssef and that the applicant spoke to Mr. Youssef. The applicant expressed to Mr. Youssef his concern about doing voluntary labour. He also said that he was willing to help out the next morning when there would be more people available to assist with the pushing. The applicant testified that in the end he told Mr. Youssef that he would not move the car because he had had a bad back for three years and was concerned about hurting it again. Eventually, Mr. Youssef told him to move the car or he would be fired. The applicant refused and his employment was terminated.

Decision

9. The Board’s practice with respect to applications under section 50 of the Act which allege a reprisal for an exercise of a right under section 43(3) of the Act is not in dispute. In Canadian Corps of Commissionaires (Hamilton), [1995] OLRB Rep. May 601, the Board discussed it this way:

10. Section 43(4) of the Act contemplates various stages in the processing of a health and safety complaint. These stages are explained in Elgaard v. Sidbec Dosco Inc. (1988) 1 COHSC 102, at 103. In the first instance the employee must genuinely believe that s/he will be endangered by continuing to work at the workplace concerned. The test at that stage is a subjective one – not purely subjective in the sense that any feelings of anxiety of the employee, however absurd or capricious, must be given credence, but subjective in the sense that the employee’s concern must be firmly and sincerely felt and the reasonableness of the employee’s refusal must be judged from the perspective and circumstances of the complainant, bearing in mind all of the factors which in fact weigh upon him/her at the time.

11. The purpose of this first stage of the process is to inform the employer to a possible health or safety hazard. If the employee’s fears prove in fact to be correct, then the employee’s work refusal has the beneficial effect of alerting the employer to a dangerous circumstance which management can then attend to.

If the employee’s fears prove to be groundless, then, by stopping work and bringing those fears to management’s attention, the employee creates an opportunity for management to investigate the concerns with the employee and to demonstrate to the employee why there is really no reason for him/her to be fearful or concerned.

51. The second stage occurs after the investigation by management, with the employee in attendance, contemplated in subsection 43(4). The employee may continue to refuse to work after the investigation conducted by the employer and the other persons referred to in that subsection, but at that point the standard, upon which the employee’s work refusal is to be judged, changes. A higher standard now applies, no longer the subjective test described above, but an objective test. Now the employee’s refusal is not judged from his/her perspective, but from the perspective of the adjudicator. The adjudicator evaluates and assesses the physical condition of the workplace and decides whether it was reasonable for a worker (not the employee specifically) to refuse to work there because of a reasonable fear of being endangered. (Elgaard v. Sidbec Dosco Inc., (1988) 1 COHSC 102.)

52. If the employee continues to refuse to work after the inspection conducted with the employer under subsection 43(4), the third stage comes into effect. An inspector investigates the work refusal, under subsection 43(7), and the inspector determines if the workplace is safe or not. The inspector’s determination is intended by the Act to bind the parties.

53. Under section 50(5) of the Act, the employer proceeds first in the hearing and must demonstrate through the presentation of evidence on a balance of probabilities that its conduct was not in violation of the Act. If the employer fails to meet this onus, then the Board must find in favour of the applicant.

54. There are two factual issues before the Board. First, did the applicant advise the company and specifically Mr. Yousef that he would not assist in pushing the truck because he was concerned that he would hurt his back. Second, was that concern genuine. In many cases under section 50 of the Act the Board must also determine whether a work refusal formed part of the reason for dismissal. However, in this case the employer acknowledges that the work refusal was the primary reason for the discharge of Mr. Cole. The company disputes that the work refusal was protected by section 43 of the Act.

55. Mr. Cole testified that he advised Mr. Youssef that his reason for refusing to move the truck was that he was concerned about injuring his back. Mr. Youssef did not testify. The Board is therefore left in a position where the only evidence before it is that the applicant advised Mr. Youssef that he was concerned about hurting his back and therefore refused to move the truck. Had the employer wished to dispute Mr. Cole’s version of events it ought to have called Mr. Youssef to testify as he is the only potential employer witness who could recount what happened in his telephone conversation with the applicant. Accordingly, the Board finds on the evidence before it that the applicant raised a concern about his back as part of the reason he refused to push the stalled vehicle.

56. The employer has raised some doubt about the legitimacy of the applicant’s concerns. In particular, the fact that the applicant lifts luggage on a routine basis and has never mentioned any back problem before the incident in question throws doubt on the applicant’s testimony. Nevertheless, the applicant testified credibly to the fact that he has a history of back problems and that he, as an employee who only gets paid when he drives, was concerned about engaging in unpaid labour. Therefore, the doubts raised by the employer are not sufficient on their own to cause the Board to disregard the applicant’s testimony. The Board is satisfied that the applicant had a genuinely held fear that he would hurt his back and as a result, refused to move the truck

57. The employer asserts that its decision to terminate the applicant’s employment had nothing to do with any back problem, or a health and safety work refusal. A fundamental flaw in the employer’s position is that it called no first-hand evidence about its reasons for terminating the applicant’s employment. Quite simply, the Board has no evidence before it about why the applicant’s employment was terminated, let alone any evidence which would support the company’s position. In these circumstances, the employer has not discharged the onus on it under section 50(6) of the Act. The Board, therefore, allows the application.

58. The Board’s practice where a violation of section 50 of the Act is found is a make-whole order. As the Board stated in Trelford Automobile Limited, [1991] OLRB Rep. Oct. 1225:

59. In assessing damages following a finding of a breach of the Act, the Board attempts to put the complainant in the position that she would have been had the unlawful discharge not occurred. The purpose of these awards is compensatory and not punitive. They are not a penalty on the employer. The Board has no penal jurisdiction.

60. Accordingly, the Board orders the employer to reinstate the applicant to his employment, with compensation in the sum of the money that the applicant would have earned from his employment, less any monies earned during that period.

61. This panel of the Board remains seized should the parties not be able to agree as to the compensation owing.

“Brian McLean”

for the Board