Rachelle Martin v. Amdahl Canada Ltd., 2000 CanLII 11966

0167-97-OH Rachelle Martin, Applicant v. Amdahl Canada Ltd., Responding Party.

BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Susan Ursel for the applicant on November 6, 1998, March 9 and 10, 1999, April 6, 1999, May 10, 11 and 12, 1999, September 22, 1999 and December 17, 1999, Elizabeth Dyke for the applicant on the last day of hearing; Malcolm MacKillop and Christine Thomlinson for the responding party.

DECISION OF THE BOARD; April 18, 2000

1This is an application under section 50 of the Occupational Health & Safety Act (the "Act").

General Nature of the Complaint

2The responding party (the "company") terminated the applicant's employment on January 9, 1997 because she refused to do one of her job duties: printing invoices. The applicant alleges that when the responding party terminated her employment, it did so in whole or in part because the applicant had exercised her right under section 43 of the Act to refuse unsafe work.

3The Board heard evidence and argument over several days with respect to the application.

Background Facts

4The company is a computer company. It sells and services computer products and has offices in, at least, Toronto, Ottawa, Montreal, Sunnyvale, California and Rosemount, Illinois ("Rosemount"). In Canada, the company's customers are primarily large organizations, like governments and banks. Its office in Toronto is essentially a sales and billing office.

5In July 1995 the applicant, Ms. Martin, was hired by the company as its Associate Contracts Billing Administrator, at an initial annual salary of $41,000. The applicant was interviewed by employees out of both the Toronto and Rosemount offices.

6There was some dispute as to who the applicant reported to. The applicant clearly felt an allegiance to Rosemount as she traveled there to interview for the position and believed that she reported to management there, as that is where the company's central billing function was located. However, management of the Toronto office took the position that she reported to them, a view which was not necessarily shared by Rosemount management. These issues were excaberated by the fact that there appeared to be some level of distrust or resentment between Toronto and Rosemount. It is clear that this tension, which arose at the beginning of Ms. Martin's employment, contributed to the difficulties in which the applicant eventually became embroiled.

7In the position of Associate of Billing Administrator Contracts, the applicant had a wide variety of responsibilities related to contract administration. The task which was the subject of this application was to generate invoices which would be presented by the company to its customers for services rendered. Occasionally, Ms. Martin would be required to produce an invoice at the request of a salesperson who needed it quickly. In these circumstances, Ms. Martin would make any required changes to the invoice on the computer located at her work station and then print the document. The applicant also had to generate monthly invoices and reports for those customers on long-term contracts with the company. In order to generate these invoices, the applicant was required to input information into her computer and then cause the computer to print the necessary document. Because of the length of these documents, this process could tie up the printer for a substantial period of time. While there was dispute about the amount of time that Ms Martin was required to spend printing invoices, we are satisfied that this task took no more than 5% of her work time.

8There was no dispute that when the applicant first started work at the company, there was a substantial backlog in the billing function. Not surprisingly, the applicant found this situation stressful, but through the applicant's efforts, the backlog was resolved. However, the applicant continued to suffer stress for other reasons.

9The applicant's ongoing stress and (eventually) this complaint arises out of a number of conflicts that the applicant had with other employees who worked in the Toronto office. The Board heard much evidence about the various incidents that created these conflicts. It is not necessary to recount those incidents in detail or to decide who was wrong or who was right. Suffice it to say that it was apparent that the office often resembled a schoolyard more than it did a professional workplace and that many persons, including the applicant, were to blame for that state of affairs.

10What is important is that many, although not all, of these disputes revolved around the only mainframe printer ,Torprint 6, that initially existed in the office. There was no dispute that a substantial burden was placed on Torprint 6 as a result of the number of employees who used it. In addition, this printer was often not functioning, and when it did work, it sometimes printed poor quality documents.

11These difficulties, in part, led to conflicts between the applicant and other employees over printer usage. The printer was of particular concern to the applicant because she was required to produce professional-looking invoices, sometimes on short notice. In order to do this, she was required to use special invoice paper, which meant she had to walk from her workstation to the printer to insert the invoice paper and then return to her computer to activate the print cycle. Since her workstation was some distance from the printer, it was not unusual for another employee to print their work while Ms. Martin was returning to her workstation, which would be erroneously printed on the invoice paper she had loaded into the printer. Both Ms. Martin and the other employee occasionally got upset because each of their documents ended up on the wrong paper.

12Worse still was the fact that when the applicant printed monthly invoices or reports, her work would tie up the printer for some time. Although she only had to produce these long documents twice per month, this led to conflicts with other employees who had printing jobs which could not be completed until the applicant's job was finished.

13These were all quite petty matters, typical of the problems that all office employees must face in their day-to-day existence. They should have been resolved through employee cooperation or ultimately by management directive. They were not.

14It is clear that the company from the outset put most or all of the balance for these inter-personal conflicts on the applicant. The responding party conducted periodic performance appraisals of the applicant. These concerns were reflected in these appraisals. On the whole, the company found that Ms. Martin was a good employee and informed her of this fact. However, the company advised the applicant of concerns it had regarding how she was getting along with other employees. These concerns largely related to how the applicant dealt with other employees over printer use, although there were other issues. The applicant reacted very strongly to these negative aspects of the performance evaluations. The following extract, which is a small sample of a very long document created in response to her first performance evaluation, provides a flavour of the applicant's responses:

"The above progress was made in spite of humiliating, demoralizing working conditions which have taken their toll on the high degree of motivation, the positive attitude and dedication I came to Amdahl with. More recently these working conditions have begun to adversely affect my health.

The onus was put on me to avoid being harassed while harassers were encouraged to wage false accusations against me. This effort to assassinate my character and impose on me a second class status has no constructive purpose. It pushes the target of harassment to avoid doing some of her work in order to avoid being harassed and being accused of initiating altercations. Such a set up is usually intended to justify a poor performance review and give the message to offenders that their conduct is acceptable.

Employees who are held responsible for other people's actions and forced to work with threats of dismissal inevitably lost their interest in further development. Personally, I could have accomplished much more had my right to a healthy harassment free working environment been recognized".

15As can be seen, Ms. Martin did not accept that her inter-personal skills were a problem and resented receiving the blame. She placed most of the blame on other employees and on the company's deficient printer arrangement. The applicant brought her concerns regarding the printer situation to management in the United States. Eventually in late 1995 Rosemount and the Toronto office agreed that they would share the cost of purchasing an additional printer (Torprint 9) "dedicated" to the applicant's requirements. The fact that the cost of the printer was shared between the two offices was probably not within the applicant's knowledge. Ms. Martin was, however, told that the printer would be "dedicated to billing". Although the applicant requested that Torprint 9 be placed immediately adjacent to Ms. Martin's work station, it was located so that other employees could also use it. Nevertheless, this arrangement largely resolved most of the printer problems for several months.

16There was significant dispute between the parties at the hearing over the meaning of the word "dedicated". Ms. Martin testified in examination-in-chief that she understood that Torprint 9 was to be used solely for invoice printing in the same way that the billing department in Illinois which had their own printer. As Ms. Martin testified: "It was to print nothing but invoices". Ms. Martin understood this from her conversations with management in Rosemount. Under cross-examination Ms. Martin maintained that while she expected to be the primary user of Torprint 9, other employees could use it, if needed, just by asking her.

17The company's version of what was meant by "dedicated" was that the printer was for the use of the billing department (i.e. Ms. Martin) but that other employees could use it when needed. Ms. Martin was not to control the new printer and Torprint 9 was to be used by all employees if Torprint 6 broke down. In any event, despite the divergent interpretation the parties placed on the word "dedicated", as noted, the number of printer-related problems decreased substantially after the new printer was installed.

18In the first week of August 1996 the applicant learned that she had developed a serious illness which was unrelated to the difficulties she was having at work. The applicant's illness and treatment caused her to be off work until September 1996, she was forced to go off again on October 10, 1996 to receive further therapy, and returned in November 1996.

19When the applicant returned to work, she discovered that there was again only one printer available, as Torprint 6 had broken down. Therefore, all of the printing was being done on Torprint 9, resulting in some of the same difficulties that occurred before. Nevertheless, Ms. Martin avoided serious conflicts, in part, because she changed her work hours to avoid printer conflicts.

20There is little doubt that Ms. Martin was under stress. She had legitimate and serious concerns about her illness, and the printer situation had reverted back to what it had been. In November 1996, Ms. Martin's supervisor, Jay Jacobsen, received reports and observed that Ms. Martin appeared not to be feeling well. He was concerned that she had not fully recovered from her illness. Mr. Jacobsen asked Ms. Martin about how she was feeling. Ms. Martin replied that she was fine. As a result of the question, Ms. Martin apparently conceived that the company was going to take action against her, and sought and presented to the company notes from two doctors. The relevant part of one note stated "This will serve as confirmation that she is fit to work on a full-time basis and is capable of carrying out all regular duties". The other note stated, in part, "... as far as I am concerned she can return to work immediately following her treatment on a full-time basis. I cannot see any reason why she cannot resume her full day-to-day activities and work responsibilities". These doctors notes satisfied the company that Ms Martin was fit to do her job without restriction and accordingly they took no further action.

21On January 6, 1997 Ms. Martin ran a print job on Torprint 9. When she arrived at the printer to retrieve her documents, she discovered that regular paper had been substituted for the invoice paper she required for the print run. Upon seeing that the work would have to be re-run Ms. Martin exclaimed "Oh, darn it" or some similar phrase. After her exclamation, Ms. Martin heard other employees laughing, apparently at her plight. Ms. Martin was very upset.

22Ms. Martin was determined not to put up with the situation any further. She returned to her office and drafted an e-mail to members of senior management in Toronto and the United States. The e-mail stated:

TO: Nigel Hilliard, David Sweezie, Tony Grice, Lee Stinson

Since the Billing Administration was brought back to Canada it has been the target of harassment and undermining. My use of equipment and access to information needed to do my work has been obstructed as part of ongoing harassment waged against me by Diana Kittner and the staff she influenced: Karen Ritson, Christina Ho and Janet Miller and by Patricia Pearce and those she influenced: Teresa Keys and Peter Lamphier.

Since my return from medical leave, staff from the North York office admitted to my immediate supervisor that stressful conditions have been imposed on me in the hope these conditions would affect my work and cause my health to deteriorate. Yet I have continued to accomplish all my work as well as back-end corrections of work done by other employees.

A billing printer sent up to Canada from the U.S. intended for billing administration was taken over by malicious staff and my need to issue invoices has been for the above employees a "frog bashing" opportunity. The situation has been allowed to escalate by some North York Managers who waged a smear campaign against me to divert attention away from the sadistic and disruptive conduct of the above named employees.

I regret to advise that I will not print any more invoices until a printer has been designated to the Billing Administration now and upon migration to the Oracle application as was originally intended.

Rachelle Martin

23Not surprisingly, Ms. Martin's memorandum was a primary focus at the hearing into this matter. Under cross-examination, Ms. Martin admitted that many, if not all, of the complaints she had with respect to employees named in the first paragraph of the memorandum were old and in many cases resolved. For example, Ms. Martin acknowledged that she had had no difficulties with Christina Ho for more than a year and that her concerns with respect to Peter Lamphier related back to when she commenced employment with the company. More importantly, Ms. Martin testified that her allegation of "frog bashing" in the final paragraph was false. She testified that she only referenced "frog bashing" because she was frustrated by the whole situation.

24As a result of Ms. Martin's refusal to print any more invoices, the company decided to terminate Ms. Martin's employment. On January 9, 1997 Mr. Jacobsen and Mr. Charzan met with Ms. Martin to advise her of the company's decision. Ms. Martin alleges that she raised a health and safety concern in that meeting. However, even if that is true, the company had already made up its mind to terminate her employment and the only purpose of the meeting was to advise her of this fact. During the course of the meeting Ms Martin did once again accuse the company's employees of "frog bashing". At the hearing into this matter she testified that she only said this because she was frustrated.

25At the conclusion of the meeting, the company handed Ms. Martin a letter confirming the termination of her employment and offering a severance package upon executing a release. Two days later, Ms. Martin returned the letter, agreeing to the severance package. That would have ended the matter, except that Ms. Martin was not prepared to execute the release proposed by the company, as she objected to the following clause:

I HEREBY ACKNOWLEDGE THAT I have not been subjected to any form of discrimination whatsoever and hereby covenant and undertake not to file any complaint under any applicable Human Rights Legislation.

26The company did not agree to Ms. Martin's proposed change to the release. Therefore, and it was not disputed before the Board, there was no settlement. The settlement materials were accepted into evidence on the agreement of the parties.

27Ms. Martin appears to have initially commenced a Small Claims Court action against the company. Later, she filed this application.

Decision

28The relevant sections of the Occupational Health & Safety Act are as follows:

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.

(7) An inspector shall investigate the refusal to work in the presence of the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4) (a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the workplace or part thereof is likely to endanger the worker or another person.

(9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4) (a), (b) or (c).

(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his or her work station during the worker's normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during such hours; or

(b) subject to section 50, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the workplace or in the part of the workplace being investigated unless, in the presence of a person described in subsection (12), the worker has been advised of the other worker's refusal and of his or her reasons for the refusal.

(12) The person referred to in subsection (11) must be,

(a) a committee member who represents workers and, if possible, who is a certified member;

(b) a health and safety representative; or

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

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.

(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 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.

29The 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 was not in dispute. In Canadian Corps of Commissionaires (Hamilton), [1995] OLRB Rep. May 601, the Board discussed it this way:

49. 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.

50. 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.

30The employer's primary argument was that even if all of Ms. Martin's allegations regarding the printer and the harassment she endured were substantiated (or, as the Act requires, the employer failed to prove the contrary), the application still must be dismissed because the work refused did not involve a "physical hazard" as is required by section 43 of the Act. The employer relied on Meridian Magnesium Products Limited, [1996] OLRB Rep. Nov./Dec. 964 where the Board stated at paragraphs 128-132:

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

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

130. (2) No worker shall,

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

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

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

130. This is not to say that the OHSA ignores employee behaviour that could pose a danger to other workers. If an employee engages in violent behaviour at work, "rough conduct" or some ill-intentioned "prank", such behaviour may be caught by OHSA section 28(2), even though it may be a manifestation of misogyny, racism, or other problems addressed in the Code. One must be careful not to unduly limit the scope of OHSA protections, or assume too readily that behaviour can be precisely characterized or confined to precise legal compartments. It is simply that "hazardous words", "dangerous pictures" and "injurious attitudes" – the allegations in this case – do not fit very well into the range of risks to which the OHSA is specifically addressed. Nor are these the sorts of things that appear to be contemplated by the kinds of remedial orders that an inspector may make under section 57. The provisions of the OHSA do not clearly speak to or easily encompass "dangers" to an employee's mental health – be they overt and unlawful harassment (sexual, racial or otherwise) as alleged in this case, or simply conditions in the workplace which generate stress (technological change, impending layoffs, a new boss, friction with other employees, workload, etc.). Nor is it easy to accept that anything that causes "stress" is necessarily a "hazard" regulated by the OHSA.

131. Again, I do not suggest that the OHSA cannot be read to cover circumstances that impact upon the equanimity or mental health of employees – including the behaviour of other employees. It does not take much imagination to think of circumstances (or employee behaviour) that could cause annoyance, anger, anxiety, stress, or even, in extreme cases, mental illness – depending upon the situation, the response of the individual employee, and perhaps the other sources of distress to which an employee may be subject outside the workplace. For, the causes of "stress" are numerous, the responses to stress may be quite variable, [as WCAT has explored in cases such as: Decision No. 352/92 (August 22, 1995); Decision No. 916/94 (November 21, 1995); Decision No. 528/95 (February 20, 1996) and Decision No. 511/95 (February 26, 1996)].

132. It is "arguable" that the general terms in the OHSA can be read to encompass this kind of "risk" to employee mental well-being. The point is, issues of this kind are not captured very well – or at least very explicitly – by the general provisions of the OHSA.

31The employer also relied on Centro Donne Inc. [1997] O.L.R.D. No. 309, where the Board discussed this issue in circumstances where an employee refused work, negotiating on behalf of minority clients who did not have OHIP, because she believed it was too stressful:

83. In Barmaid's Arms, [1995] OLRB Rep. Mar. 229 the Board concluded that:

(9) At the first stage of a work refusal, the employee need only have "reason to believe that" the workplace or part thereof is a danger to herself or another worker. The Board finds that Ms. Moore did have reason to believe that serving the customer in question was a danger to herself and her co-workers. We wish to emphasize that we are not determining

whether or not the customer in question really was a danger but only that Ms. Moore had "reason to believe that" he was …

84. The employer in that case did not deny that the complainant had been fired for refusing to serve the customer and that she had refused to serve him based on her stated belief that he was dangerous. The complainant was aware that the customer had engaged in a physical altercation with another female employee and she had witnessed him push a woman off a bar stool. She had also been advised that the customer had become abusive when a female employee had tried to take his drink away at closing time.

85. What is striking about the cases cited above is that the "hazards" involved create some potential for harm arising out of equipment, machinery, or the PHYSICAL condition of the workplace, matters contemplated by sub-section 43(3). The hazard of which Ms. Kidane complains is negotiating on behalf of clients who do not have OHIP. It was clear from Ms. Kidane's own evidence, carefully reviewed in cross-examination, that the hazard she asserts is one that arises when she is required to obtain services at reduced or waived fees for these non-OHIP clients – it is the negotiating involved that she asserts gives rise to the health risk. She confirmed that dealing with the client is not part of the hazard – the hazard is engaging in the negotiations on their behalf.

86. We feel it necessary to be clear that the stress of which Ms. Kidane complains is not the hazard. Stress may very well be the result of being subjected to a workplace hazard, and may manifest with symptoms that are either physical, psychological or both. Stress is the consequence, and except for difficulties in assessing the myriad of possible factors to determine a casual connection to the workplace hazard, as is required for example by Workers' Compensation legislation, it seems little different from a fractured leg, respiratory distress, or lower back pain.

87. But the fact that one might suffer stress in the workplace does not necessarily mean that a workplace hazard is present. Nor does it automatically provide a right to refuse work. One may suffer stress because they are simply not suited to perform the work in question, they do not like their supervisor, or they have to travel long distances to and from work. The possibilities are endless. Unlike Worker's Compensation legislation, the OHSA does not look to injury. The OHSA focuses on the identification and/or existence of hazards.

88. We should also make it clear that this complaint is not about workload. Although Ms. Kidane refused to perform the work of serving non-OHIP black clients, she made it clear that she had been prepared to canvass black communities where the women would have OHIP (specifically she expressed interest in the Ethiopian and Somalian communities), in order to expand her caseload in that way.

89. Section 43 provides a worker with the legal right to refuse to perform certain work and exists as an exemption or recognized explanation for conduct that would otherwise be characterized as insubordinate. That must be the starting point; the fact that absent section 43 (and absent the earlier common law and arbitral jurisprudence that has been codified by the OHSA) refusing to perform work is generally an act of insubordination warranting discipline. Section 43 provides the right to refuse where the worker has reason to believe that the conditions set out in any of sub-section 43(3)(a)-(c) exist.

32Ms. Martin's concern, as expressed in the application, was that she was suffering from stress, due to the treatment she received at the hands of other employees. While the alleged harassment and stress arose primarily (although not exclusively) out of a piece of office equipment, a printer, the applicant refused the work, taking her best case, not because the printer was itself dangerous, but because of the alleged treatment she received while using it. It is important to recall that the incident on January 6, 1997 which led immediately to the applicant's work refusal was that the applicant heard other employees laughing, presumably at her. In our view, the hazard complained of by the applicant in this case is equivalent to "not getting along with a supervisor", which, as the Board stated in Centro Donne Inc., is not a "physical hazard" and does not fall under the OHSA.

33Even if this application involved a physical hazard, we would not be inclined to find in favour of the applicant. In order to succeed, the applicant must convince us that she genuinely believed, on a subjective basis, that continuing to print documents would put her health at risk. In other words, the applicant must prove that the reason she refused to print documents was because of a concern for her health and safety. We are not satisfied that all or part of the applicant's reason for refusing to print documents was a genuine concern for her health and safety.

34Counsel for the applicant made a creative and at times compelling argument that the Company cannot succeed because it never went through any of the steps required by the Act when there is a work refusal. However, that argument can itself only pertain if the applicant initiates the process by engaging in a work refusal that is both covered by the Act (i.e. that involves a physical hazard) and is genuine.

35While the applicant testified that the only reason she refused to print was because she believed her health was at risk, the applicant's credibility on this point is significantly in question. In her e-mail of January 6, 1997 the applicant first accused a number of employees of harassing her . However, under cross examination Ms. Martin admitted that many, if not all, of the employees named had in fact not caused her concern for many months and in fact were not part of her decision to cease printing.

The applicant also admitted that her accusations that the company was prejudiced against French-speaking persons were not truthful and that she only made them out of frustration. However, based on the evidence we heard about the applicant's conduct in the workplace generally and the fact that she refused to sign a release of Human Rights complaints we are inclined to believe that her discrimination concerns were important at the time and only became peripheral once she learned of her right to make an application under section 50 of the Act.

36In our view, the applicant was simply frustrated by the fact that the printing situation was not resolved and sought a way to compel the employer to fix the problem. She raised the "frog bashing" issue, which she acknowledges was at best exaggerated, and the limited concern about her health expressed in her memorandum to force the employer's hand. Health and safety only became a real concern once she retained an agent to file this complaint.

37The applicant's credibility was also diminished by her behaviour on a trip to the Rosemount office which she made to discuss her concerns regarding the printer situation. On that occasion, the applicant cut short a discussion of her concerns and Illinois' management's response to them so that she might attend a luncheon of all the employees in that office. This behaviour is inconsistent with an employee who is genuinely concerned about her health and safety.

38Our view of the applicant's credibility was also not enhanced by her refusal to acknowledge under oath that capitalizing letters in an e-mail is a form of emphasizing the words so capitalized. The applicant's lack of forthrightness in this regard is demonstrated by her response to the employer's concern expressed in its performance appraisal about the tone of her e-mails. The applicant wrote the following in her reply:

"In this appraisal I am instructed to SET AN APPROPRIATE PROFESSIONAL TONE IN MY WRITTEN CORRESPONDENCE".

These words were the only ones capitalized in her multi-page response. She testified before us that there was no meaning which could be attached to the fact that those words are capitalized.

39The protections afforded by section 50 of the Act are among the most important statutory protections for workers in Ontario. They help ensure that employees work in as safe an environment as possible. It is because of the importance of the rights at stake that the Board has given wide latitude to employees with honestly held concerns for their safety. However, the Board also must be vigilant to ensure that these important rights are not used for improper purposes by employees who do not have legitimate and honestly held health and safety concerns.

40In this case, we are satisfied that the applicant did not invoke the Act prior to her discharge and did not honestly believe that her health and safety was in danger. Therefore, even had we found this complaint to involve a "physical hazard", we would have dismissed the application.

41Finally, we are not of the view that this is an appropriate case to exercise our discretion to impose a lesser penalty under section 50(7) of the Act because we have found that the applicant brought this application for reasons unrelated to genuine health and safety concerns.

42For all of the foregoing reasons, this application is dismissed.

"Brian McLean"

for the Board