2870-98-OH Antonio Zanet, Applicant v. The Liquor Control Board of Ontario, Responding Party v. Ontario Liquor Boards Employees’ Union, Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: H. Kopyto and Antonio Zanet for the applicant; Robert Little for the responding party; Julia Noble for the intervenor.
DECISION OF THE BOARD; January 17, 2000
This is a complaint under section 50 of the Occupational Health and Safety Act (“the Act”).
The responding employer objects to the application on the basis that it does not disclose a prima facie case, or, to the extent that it does, the Board should exercise its discretion to inquire no further into it.
The employer’s objections were argued at the hearing on December 21, 1999. This decision addresses the arguments presented then.
The application involves three areas of concern felt by the applicant: he was moved out of the central supply area to perform work in other areas; he was denied a promotion to a Warehouse IV position; and his manager spoke to him improperly. I will deal with the employer’s objections under each of these three topics.
The applicant’s work assignment
The applicant has worked for the employer since 1982. He is now 64 years of age and he will retire in June 2000. He works in the warehouse, in the job category, Warehouse III. For a long time he has been troubled by respiratory discomfort. He also has problems with his knees. He believes his breathing capacity has been damaged as a result of having had to work in parts of the employer’s workplace where the air quality is undesirable. He says that his breathing is hampered when working there. His knees hurt when he must climb stairs and bend frequently. Warehouse III employees typically rotate in a variety of jobs within the warehouse.
The applicant brought a previous complaint under section 50. It was resolved by Minutes of Settlement concluded on September 15, 1997. The important provision of that settlement for the purposes of this application is contained in paragraph 3. It reads:
Mr. Zanet shall remain assigned to Central Supply pending the receipt of a report of an independent medical assessment by a specialist to be jointly selected by the LCBO and Mr. Zanet’s physician. The purpose of this assessment shall be to determine whether Mr. Zanet’s current respiratory condition restricts his ability to work within the Durham Regional Warehouse. The LCBO shall pay for the assessment. The assessment shall be scheduled during working hours and Mr. Zanet shall be paid his regular rate for attending. The result of the assessment shall be provided to all parties and the appropriateness of Mr. Zanet’s assignment shall be reviewed.
The employer argues, in my view correctly, that the proper interpretation of this provision is that the applicant was to be assigned to work only in the central supply area of the warehouse, pending receipt of the medical reports contemplated. The medical reports were to indicate what restrictions should apply to the applicant’s work. Thereafter the applicant’s work assignment would be reviewed. In other words, the settlement altered the applicant’s circumstances in relation to other Warehouse III employees. Unlike them, he was not required to rotate among the various jobs of the warehouse. He was to work only in the central supply area.
Independent medical assessments were obtained in accordance with the provisions of the settlement agreement. The employer’s and the applicant’s physicians jointly chose suitable specialists. Their reports placed no medical restrictions on the applicant’s work assignments. The medical examinations of the applicant found no on-going residual disability which required accommodation. As a consequence, in June 1998, management held a meeting with the applicant in which his work assignments were reviewed. Management was satisfied that the applicant could not perform the following jobs in the warehouse on account of his respiratory and orthopaedic difficulties: batch deck monitor, bulk pick and tier pick. He was to perform the other duties, which included working in the exam room and in the central supply.
The applicant’s complaint is that he should work only in the central supply area, and not in other warehouse jobs. He feels that the requirement to do other rotational duty, albeit less than is required of other employees of his classification, is not sufficient accommodation of his disability. As a result he contends that he is being victimized for having previously filed a section 50 complaint against the employer.
The applicant wishes the Board to draw a conclusion that the employer has violated section 50 of the Act. This, he says, is because he has not been adequately accommodated and the reason for that, he contends, is the employer’s desire to penalize him for his previous complaint. The common cause facts between the parties do not suggest that. They suggest the following: the parties concluded an agreement which temporarily accommodated the applicant; the accommodation was to endure until the parties received acceptable, independent diagnostic assessments of the applicant’s medical limitations (if any); thereafter the applicant’s work assignment was to be reviewed. The medical assessments, conducted by both the employer’s and the applicant’s chosen physicians, established that there were no medical restrictions under which the applicant had to work. The employer was then free to assign work to the applicant in the same way as is done in respect of all other employees of the same classification. The employer did so, but it took account of particular problems the applicant said he had, allowing him to do less varied work than was required of other Warehouse III employees. None of this suggests a reprisal against the applicant.
What the applicant wants is greater accommodation. That is plain from the relief he seeks in the application. His section 50 complaint is a means for him to secure that aim. He thinks he has not been adequately accommodated by the employer; he thinks his disabilities are not being given sufficient recognition. But those impressions are not sufficient to establish a causal relationship between what the applicant regards as an undesirable outcome (having to work in areas he would prefer not to work) and his original section 50 complaint. There is a series of intervening events which provide a much more convincing explanation for what has happened to the applicant - that series is described above, involving the Minutes of Settlement and the medical reports which followed.
The applicant has a more appropriate method to deal with his concerns over accommodation - through the grievance and arbitration procedures available to him. He has chosen not to exercise his rights under those procedures.
I am not satisfied that the applicant has established a sufficient causal nexus on his own allegations and the agreed facts to be able to show a prima facie case that his work assignment constitutes a violation of section 50 of the Act. Furthermore, given that the applicant has a more appropriate forum through which to remedy the accommodation concerns he feels, yet has failed to avail himself of it, the Board should not exercise its discretion to hear this aspect of the complaint.
The denial of a promotion to a Warehouse IV position
A vacancy occurred in the warehouse for a Warehouse IV position. The applicant, among others, put in an application. He was not successful. He filed a grievance through the union on December 16, 1997 in respect of his non-selection for the job vacancy. The case is currently before the Grievance Settlement Board, but it has not yet been resolved. A settlement meeting was scheduled to endeavour to resolve the matter, but the applicant failed to attend that meeting. No date has been scheduled for the hearing of the grievance.
The applicant alleges that his non-appointment to the vacancy is a reprisal by the employer against him for his having brought a previous section 50 application. This application was brought about a year after the applicant was denied the promotion. There is no allegation by the applicant to suggest a connection between his original section 50 application and his non-appointment. He merely suggests that to be the explanation.
The employer makes several objections to this portion of the applicant’s complaint. It says that the appointment of another warehouse employee to the vacancy was properly made and that it is willing to deal with the matter at arbitration before the Grievance Settlement Board. It argues that the applicant has made an election as to how to deal with his non-selection, by filing a grievance and he now seeks to deal with the same set of facts in this forum when the matter is properly before the Grievance Settlement Board. It objects to the late filing of the application, suggesting that this portion of the complaint should be struck out because it is untimely.
The employer refers to the Board’s decision in Reed Limited, [1978] OLRB Rep. Jan. 1 at paragraph 13:
To adopt the approach argued by the respondent would force an employee to forego the grievance procedure entirely in order to preserve the right of recourse to the statutory procedure. Such a development, in our view, would not be desirable from an industrial relations perspective. If there exists a grievance procedure, employees should be encouraged to utilize that process before pursuing the statutory procedure. The Board, therefore, should not foreclose an employee from bringing a complaint before it simply because that employee has had his union take the matter through the grievance procedure. Once it is established, however, that the employee has authorized the union to take the matter beyond the grievance procedure to arbitration, the Board will not deal with any complaint relating to that matter. Whether the employee has chosen arbitration prior to or following the actual filing of the complaint with the Board, the Board will treat the employee as having elected arbitration, and as being bound by that election.
The Board adopted the same approach in Guelph Transportation Commission, [1993] OLRB Rep. Sept. 842.
The employer suggests that the principle enunciated in these decisions should apply here. The applicant has referred his grievance to arbitration and he should now be bound by that election.
The issue at stake under this heading is clearly, and properly, before the Grievance Settlement Board. That body, which arbitrates grievances between the employer and the union, is seized to deal with the merit of the employer’s decision to fill the Warehouse IV vacancy with someone other than the applicant. By filing and pursuing that grievance the applicant has made an election as to which forum should properly deal with the matter.
The Board will accordingly not entertain this portion of the applicant’s complaint.
The applicant’s manager spoke to him improperly
The applicant complains that on September 19, 1998 he told his manager, Mr. Guest, that he could get sick and collapse if he worked in the APL area (the Atomic Palletizing Loader area). Mr. Guest allegedly replied, “I don’t care if you die there, this is the procedure and you have to go there.” The employer denies that Mr. Guest ever made the comment. For the purposes of the prima facie assessment of the applicant’s claim, I assume the comment was made.
The employer argues, assuming the comment to have been made, it is not sufficient to establish a prima facie claim that the employer has violated section 50 of the Act. The employer argues that other, more suitable remedies were available to the applicant, such as the filing of a grievance, to deal with the incident. What is common cause between the parties is that the applicant has suffered no adverse consequences as a result of the remark by his manager. He has not been disciplined, he has not been prejudiced in any way and no action has been taken arising from, or related to, the remark. He was merely required to perform duties which were part of the accommodation referred to above. The employer suggests that if the remark was said (which it denies) then it is not sufficient to constitute prima facie evidence of intimidation or coercion by management against the applicant. It argues that the incident was trivial and it was not brought to management’s attention until this application was made. It refers to the Board’s decision in Union Miniere Explorations and Mining Corporation, [1981] OLRB Rep. Nov. 1695, particularly paragraph 9 thereof:
The only remaining issue that could possibly relate to the Act is the allegation that following the inspection a foreman was facetious in his tone in instructing Mr. Nickarz respecting his work assignment. Even if it could be shown that the foreman’s attitude was improper and could be taken as a valid form of reprisal against the complainant for having invoked his rights under the Act, it is clear that no substantial harm resulted from that isolated incident. The grievor suffered no discipline or loss of any wages or other employment benefit or opportunity, nor the threat of any of those things. Moreover he did not complain of the foreman’s attitude either to his union or to the company directly. Where, as in the instant case, the complaint of such conduct is first brought to the company’s attention several months after the event, and where the incident involved is trivial on its face, the Board would not exercise its remedial discretion in favour of the complainant.
The applicant responds by pointing out that the remark at issue in that case was significantly less threatening than in this case - there the incident involved the supervisor requiring the complainant to wait in the carpentry shop so that he would not hurt himself, and assigned him no work for the afternoon. The applicant suggests that the case has no relevance to the facts here, given what he contends is a more coercive comment made by his manager.
This is the only portion of the applicant’s complaint which remains. The issue before me is whether the application should proceed only in respect of this issue. I consider first whether the applicant has a prima facie case in respect of this issue. Could the comment constitute a violation of subsection 50(1) of the Act? It does not involve the dismissal or a threat to dismiss the applicant (proscribed by paragraph (a)); it does not involve discipline or suspension or the threat to discipline or suspend (proscribed by paragraph (b)); it does not involve the imposition of any penalty on the worker (proscribed by paragraph (c)). At best for the applicant, the comment may arguably amount to intimidation or coercion of the applicant (proscribed by paragraph (d)). Assuming the comment might constitute an act of intimidation or coercion, were this matter to proceed it would still be incumbent upon the applicant to establish that the reason for his manager’s comment was because the applicant had brought a section 50 complaint against the employer some considerable time earlier. It is possible that the applicant could do so, hence there is a prima facie case for the employer to meet.
However, to the extent that there is a prima facie case that the applicant’s manager’s remark could constitute a violation of section 50, there is very little by way of supporting facts to suggest the likelihood of that being the case. The comment is denied by the employer and any hearing into the issue will involve contested evidence. There is a scant prospect of success in respect of this portion of the claim and, even if it were successful, it would have little or no practical effect upon the applicant's employment. In the circumstances, I decline to inquire further into the matter.
This portion of the complaint is dismissed.
Disposition
- In all of the above circumstances, and for the reasons advanced above, this application is dismissed.
“Christopher J. Albertyn”
for the Board