0069-99-OH Arnold Margulis, Applicant v. Delphax Systems, Responding Party.

BEFORE: Brian McLean, Vice-Chair.

APPEARANCES: Daniel Ublansky and Arnold Margulis for the applicant; Kristin Taylor and Veronica Bewes for the responding party.

DECISION OF THE BOARD; July 31, 2000

1. This is an application under section 50 of the Occupational Health &

Safety Act (“the Act”).

2. The applicant alleges that his employment was terminated by Delphax

Systems (“Delphax” or the “company”) contrary to section 50(1) of the Act because he exercised his right under section 43 of the Act to refuse to perform work which he believed to be unsafe.

3. The Board convened a hearing over three days to receive the parties’

evidence and representations in connection with this application.

BACKGROUND

4. Delphax designs and manufactures high-speed non-impact printers in

Mississauga. It employs approximately 250 employees. From November 1998 to March 1999 the company hired approximately 12 new engineers to develop a new printer as part of a major research and development project. The applicant, a senior mechanical engineer, was one of those hired and he commenced employment on or about January 25, 1999. Just over three weeks later, Delphax terminated his employment.

5. The applicant alleges that all or part of the reason for his dismissal was that on two occasions during the week of February 1, 1999 he refused to conduct experiments on a new solvent based cleaning system which was intended for use on the new printer because he believed such experiments to be unsafe. His belief was based on previous experience that he had working with chemicals, where he had significant allergic reactions.

6. The company’s explanation for its decision to terminate the applicant’s employment was that the applicant was rude and aggressive in his dealings with other employees. The company asserts that within one to two weeks of the date the applicant commenced employment, a number of employees came to the applicant’s supervisor, or their own supervisor to complain about the applicant’s behaviour. The company determined that the applicant was not a good fit for the company, and that he had to be

let go. The company does not dispute that the applicant had a subjective fear for his health and safety when he refused to perform the work on the cleaning system, but pleads that the applicant’s work refusal had nothing to do with the termination of his employment.

7. The company called a number of witnesses in support of its position. Three of the witnesses, Sam Theodoulou, Sarbjit Parhar and Veronica Bewes were called to substantiate the company’s position that the applicant’s work refusal had nothing to do with the decision to terminate the applicant’s employment. The other witnesses, Ron Lai,

Oksana Buyda, John Vianne, Susan Edwards, Florence Guy and Carol Tumilty all testified about incidents involving the applicant where they found the applicant’s conduct objectionable and in several cases reported their concerns to their managers. One witness, Victor Foyle, was called to give evidence about the applicant’s conduct during the applicant’s first week of employment.

8. The Board heard that during the first week of Mr. Margulis’ employment, the company conducted a brainstorming session to develop ideas regarding the new printer. There was some evidence that Mr. Margulis’ participation in these sessions was not as active as might be expected, and that he was dismissive of the process. However, it was not seriously argued (or alleged in the responding party’s written response to this application) that the company’s decision to discharge the applicant was based on this behavior (if true), so I do not consider it.

9. Some time during the end of the applicant’s first week or at the beginning of his second week of employment, Sam Theodoulou, the company’s Manager, Core Technology, met with the applicant and told him that he would like him to work on a proposed solvent-based cleaning system for the new printer. Mr. Margulis was aware from the brainstorming sessions that the company was considering using a solvent-based cleaning system. He advised Mr. Theodoulou that he was allergic to chemicals and therefore could not take part in the project. Mr. Theodoulou told the applicant that he did not know what chemicals they were using and maybe he was not allergic to them. Mr. Theodoulou suggested that Mr. Margulis review the material data safety sheets that

pertained to the chemicals, but Mr. Margulis refused. Mr. Margulis asserted that he was allergic to all chemicals.

10. A short time later (Mr. Theodoulou was unable to recall how long after, whether hours or days) Mr. Theodoulou went to see Veronica Bewes, the company’s Manager of Human Resources to discuss Mr. Margulis and to ask that his employment be terminated. Ms. Bewes gave evidence about the meeting which I accept as truthful. Mr. Theodoulou expressed concerns regarding Mr. Margulis’ attitude and approach to certain employees. Employees had complained to Mr. Theodoulou and he recounted those complaints to Ms. Bewes.

11. Ms Bewes recalled that Mr. Theodoulou gave her four examples of Mr. Margulis’ difficulties in dealing with other employees. The first example was an incident involving Beth Currie, a document specialist in the company’s engineering department. Mr. Margulis came to Ms. Currie during his first week of employment and asked for a Delphax fax cover sheet. She advised him that none existed and suggested that he make one up himself. Ms. Currie testified that he kept asking her why there was

no fax cover sheet already made, implying, in her view, that she was derelict in her duty. She asked him his name and who he worked for. She was so upset by the conversation that she complained to her supervisor and to Mr. Theodoulou. Under cross examination about the incident Mr. Margulis testified that Ms. Currie’s version of events was completely different from his own recollection of events.

12. Another example of Mr. Margulis’ poor attitude which Mr. Theodoulou cited to Ms. Bewes was an incident where Mr. Margulis asked Mr. Theodoulou for a personal organizer. Mr. Theodoulou told Ms. Bewes that he was concerned about the way he asked for the organizer. In examination Mr. Theodoulou testified that Mr. Margulis was persistent in his demand for a personal organizer and said he could do his job better

if he had one. Mr. Theodoulou testified that he felt a threatening attitude coming from Mr. Margulis. Mr. Margulis testified that there was no issue about a personal organizer at all. He had asked for one from Mr. Theodoulou when he requested a calculator and Mr. Theodoulou told him that he did not have an organizer so why should Mr. Margulis

need one. Mr. Margulis accepted Mr. Theodoulou’s decision.

13. The third example cited to Ms. Bewes involved an employee in the

company’s supply room, Florence Guy. Ms. Guy testified at the hearing that on Mr. Margulis’ first day of work she had taken his photograph for a security card. Two photographs were produced, only one of which would be used by the company for the card. When Mr. Margulis realized that there was an extra photograph he demanded that Ms. Guy give it to him. She refused on the grounds that the company always kept the extra photograph. Mr. Margulis became insistent but she did not change of her stance. Eventually Mr. Margulis relented but she was so distraught by his behaviour that she advised her supervisor and Mr. Theodoulou about the situation. Mr. Margulis version of these events was that he had asked for the photo, Ms. Guy had declined and that was satisfactory to him.

14. The fourth incident was somewhat more vague. It involved the

engineering department secretary Susan Edwards. Mr. Theodoulou told Ms. Bewes that Mr. Margulis had been making demands of Ms. Edwards. Ms. Edwards testified that Mr. Margulis was not a concern for her although she found him to be a nuisance because he requested office supplies that no one else had. When she told him to wait a week to get these things he would come back after a day and ask her again for the item. It appears that Ms. Edwards advised Mr. Theodoulou of these issues. She also advised him, although not until later, that other employees were complaining to her about Mr. Margulis.

15. The other example given by Mr. Theodoulou of Mr. Margulis being

argumentative with others was the way he had acted in his work refusal. He was concerned that Mr. Margulis had refused to even look at the material data safety sheet relating to the chemicals. Ms. Bewes testified that Mr. Theodoulou told her that Mr. Margulis was like a “dog with a bone” during his work refusal.

16. Ms. Bewes, quite properly, advised Mr. Theodoulou that it was very

early to be asking to terminate Mr. Margulis’ employment. She suggested that Mr. Theodoulou should sit down with Mr. Margulis and express his concerns about the way in which he dealt with others. Ms. Bewes offered to have that conversation herself, but Mr. Theodoulou said he would handle it. It was clear to Mr. Theodoulou that Ms. Bewes wanted him to advise Mr. Margulis in a somewhat formal way that he must start dealing with other employees better.

17. For some reason, Mr. Theodoulou ignored Ms. Bewes’ request. At

best, and even this is disputed by Mr. Margulis, he told Mr. Margulis that others had complained about his attitude. Mr. Margulis said he was just trying to do his job. Mr. Theodoulou acknowledged that this was a “brief informal discussion” which would not have put him “on notice”.

18. Not only did Mr. Theodoulou not have a formal discussion with Mr. Margulis regarding his attitude, it appears that Mr. Theodoulou did not advise anyone, other than Ms. Bewes, that Mr. Margulis could not work on the solvent based cleaning system project. A few days after Mr. Margulis initially advised Mr. Theodoulou that he was unwilling to work on the system, Mr. Parhar the company’s supervisor of mechanical engineering asked Mr. Margulis again to work on the system. Mr. Margulis again refused. Mr. Parhar then told Mr. Theodoulou about what had happened and Mr. Theodoulou advised Mr. Parhar to give Mr. Margulis another assignment.

19. During his evidence Mr. Theodoulou testified that the company accepted Mr. Margulis work refusal as legitimate and fully intended to assign him to another part of the project, the elimination of “creep” in the belt, which did not involve the use of chemicals. However, it appears that after Mr. Margulis’ two work refusals he was assigned no other work. Rather than just do nothing, Mr. Margulis conducted research on his own initiative.

20. The company called evidence from a number of other witnesses about

Mr. Margulis’ continued alleged boorish behaviour in the second and third weeks of his employment. Ron Lai, a technical specialist, who worked in the cubicle next to Mr. Margulis testified that Mr. Margulis made many unreasonable demands of him. Mr. Lai informed Mr. Parhar of his concerns. However, they only came to Mr. Theodoulou’s attention when Mr./ Theodoulou asked Mr. Parhar in the third week of Mr. Margulis’ employment for his opinion of Mr. Margulis. Mr. Parhar’s view was that Mr. Margulis should be fired because of poof attitude. Ms. Buyda another engineer testified that Mr. Margulis to treated her like a child and not as a co professional. John Vianne, the company’s supervisor of manufacturing engineering, testified that he had an encounter with Mr. Margulis in which he was concerned about Mr. Margulis’ aggressive approach in which he felt “interrogated”. He advised Mr. Theodoulou of his concerns. Finally, Carol Tumilty testified that she also had concerns about Mr. Margulis’ approach and attitude and that she advised her immediate supervisor of these concerns. However, Mr. Theodoulou did not learn of Ms. Tumilty’s concerns until after the termination of Mr. Margulis’ employment so they did not form part of the company’s decision.

21. On the Thursday or Friday before Mr. Margulis’ employment was

terminated, Mr. Theodoulou came to Ms. Bewes again. He told her that Mr. Margulis had alienated so many people that he was afraid the company would lose employees if the company kept him. Ms. Bewes asked Mr. Theodoulou if he had spoken to Mr. Margulis like she had suggested and Mr. Theodoulou (falsely) indicated that he had. Ms. Bewes discussed the situation with the company’s Vice-President of Manufacturing and he gave his approval to terminate Mr. Margulis’ employment.

22. On Monday, February 16, 1999 the company terminated Mr. Margulis’

employment. The termination meeting lasted for approximately 45 minutes, much longer than the company intended. The reason that it took so long is that Mr. Margulis did not accept the employer’s position and challenged the reasons advanced for it. Ms. Bewes took notes of that meeting and since both parties agree that they are an accurate

reflection of what took place, I reproduce them in their entirety:

Notes to file:

Termination of Arnold Margulis

February 16th @ 4:00 p.m.

I called Arnold into my office. When he arrived Sam told him that “We have decided to terminate you as of today Arnold”.

Arnold was very surprised by this and asked why. Sam told him that he didn’t want to get into the specifics of why at this time, but that the decision had been made. Arnold kept pressing Sam for a reason why. Finally, I interjected that Sam had made a difficult decision based on the fact that Arnold’s work style and personality didn’t fit the culture of the company and this was something that didn’t always show up in an interview. While I was saying this, Arnold interrupted to ask Sam why again. He said that he couldn’t understand, after all the effort he had put in, going to the library on the weekends to research a particular part of the machine, etc. Sam tried as nicely as he could to explain that it had nothing to do with Arnold’s technical abilities, but rather with his style and the way he approached people. Arnold said that he had made no contact thus far with anyone to upset them. Sam informed

him that in fact he’d had contact with several people – “you would be surprised at how many.”

Arnold refused to accept Sam’s reasoning and asked why he hadn’t talked to him about this prior to today. Sam said that he felt it wouldn’t have done any good since it is hard for people to change. I interjected again and said to Arnold that Sam had thought about this a lot before making such a decision, and that he had consulted with several levels of

management before taking such a step and that the decision was final. I told Arnold that beyond managing a project, Sam had the responsibility to manage the people to ensure that the project was a success and he had considered what was best for the project and his people in making his

decision. I turned over the letter and release that we [sic] sitting in front of Sam and moved them towards Arnold. As I was doing so he started to ask Sam why again. Sam said ok Arnold, as an example who gave you the assignment of researching the … (machine part he had

studied at the library). He said that he and Sam had talked about it and how interesting it was going to be, etc. Finally I said, but Arnold Sam asked who assigned you that task? Sam said that he was to take assignments from Sarbjit, which he hadn’t been doing. Arnold first said that according to his offer letter he worked for Sam – and Sam said yes but out department does both mechanical and electrical and that’s why we have group leaders. Then Sam said that Sarbjit had not assigned him anything other than the cleaning system – for which he had a medical reasoning for not doing the cleaning system. He brought this up a

couple of times and each time Sam told him that his inability to work on the cleaning system had nothing to do with Sam’s decision.

A couple of times during their discussion, I pointed out to them that they could discuss this for hours but it wouldn’t change anything at this point. I started to read the letter and explain to Arnold its contents, but each time he interrupted me, said just a minute, I want to talk to Sam and proceeded to go on again about needing to discuss this

decision further. Sam reiterated that Arnold was technically very sound and an asset to the department and that if it were just himself he was willing to live with Arnold’s style, but that when several people complained to him, he had no alternative but to consider his group.

Again, I tried to explain the letter and again Arnold interrupted and said, just a minute I’m talking to Sam. I said that I thought this was the perfect example he was looking for, continually interrupting and not wanting to hear the business at hand and that if he interrupted me one

more time I would probably lose it. With that he finally listened as I explained that even though he had been her [sic] for less than three months (as required under the employment standards act) Sam was prepared to offer him two weeks pay in lieu of notice as consideration that he

had not been able to speak to Arnold about the circumstances prior to his decision.

Sam then asked Arnold if he had heard and understood what I had said. He said yes and asked if they could continue to talk. I said that I felt it would be better for them to talk after Arnold had time to take in the information and consider it. Sam told Arnold that he had

arranged a taxi and they left my office.

Of particular note was the fact that Mr. Margulis asked Mr. Theodoulou during the termination meeting why he had never been advised of the fact that employees were concerned about his behaviour.

23. Following the termination meeting, Mr. Margulis and Mr. Theodoulou

discussed the situation further in Mr. Theodoulou’s office. Eventually, Mr. Parhar was called into the discussion. This post termination discussion lasted for more than one-half hour.

DECISION

24. Section 50(1) of the Act states:

25. (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.

25. The responding party does not dispute that Mr. Margulis exercised a

right under section 43 of the Act when he refused to work on the solvent-based cleaning system. The company also does not dispute (at least before the Board) that Mr. Margulis’ work refusal was proper in that he had at least a subjective fear that the work could endanger his health or safety. None of the steps required by section 43 of the Act

were followed by the company. Therefore, the only issue in this application is whether the company’s decision to terminate the applicant’s employment was due all or in part to his work refusal.

26. The most striking fact about this application is the fact that the company discharged a senior professional engineer after only three weeks of employment. Indeed, this fact is even more striking in that Mr. Theodoulou actually sought to take this action one and one-half weeks earlier. It is unusual, to say the least, for a manager to request to

terminate an employee’s employment only 1½ weeks after the commencement of his employment. There must be some explanation. Something drastic must have happened to cause the company to take that action so soon in the relationship.

27. The company says that the “drastic happening” was the number of

complaints that it received about Mr. Margulis’ way of dealing with people. I accept the overwhelming evidence before me that Mr. Margulis’ method of communicating with other employees was arrogant and dismissive. While counsel for the applicant attempted to diminish the incidents as “misunderstandings” or events that were not serious, the

fact is that employees were so put off by Mr. Margulis’ interaction with them that they took the step of notifying their own supervisor or his. The fact that Mr. Margulis testified under oath at the hearing that these dealings with these employees were amiable meetings is testimony to either his lack of candor or to the fact that he is unable or unwilling to appreciate how his own conduct affects others.

28. However, even accepting, as I do, that Mr. Margulis was very difficult with other employees, it cannot be said that he was so difficult that the company can demonstrate to the Board’s satisfaction that such problems were the only reasons for its decision to terminate his employment. The fact is that many of the complaints were of a somewhat minor nature, particularly those which led up to Mr. Theodoulou’s first request for dismissal in the second week of Mr. Margulis’ employment. It is worth recalling that apart from the work refusal, the incidents cited to Ms. Bewes by Mr. Theodoulou was his

request from Beth Currie that she provide a fax cover sheet, his request of Susan Edwards for office supplies, and his request of Sam Theodoulou that he be provided

with a personal organizer.

29. Strong inferences can also be drawn from the timing of events. The first occasion when Mr. Theodoulou asked Ms. Bewes if he could terminate Mr. Margulis’ employment occurred directly on the heels of Mr. Margulis’ work refusal. Mr. Margulis work refusal was one of the examples cited by Mr. Theodoulou to demonstrate Mr. Margulis’ poor attitude. In addition, the Board is struck by the fact that Mr. Theodoulou did not advise anyone, other than Ms. Bewes about the work refusal which resulted in Mr. Margulis being asked again by Mr. Parhar to perform the duties that he had refused. This is compounded by the fact that the company appears to have not assigned Mr. Margulis any other work following his first (and second) refusal and did not invoke its own internal procedure for accommodating employees with chemical reactions.

30. In my view Mr. Theodoulou did not believe that Mr. Margulis work refusal was legitimate and thought him insubordinate for having made the refusal, particularly the way in which he had refused. Based on all of the evidence I am satisfied that at least some of Mr. Theodoulou’s request to have Mr. Margulis discharged in the first instance was a result of his work refusal.

31. It is at least arguable that when Ms. Bewes properly resisted Mr. Theodoulou’s initial request that Mr. Margulis’ employment be terminated that could “clean the slate” for the subsequent termination. That argument could only succeed in my view if the company had dealt with Mr. Margulis in good faith following his first work refusal. However, I find that Mr. Theodoulou gave up on Mr. Margulis after his

first work refusal and was determined to terminate his employment. Had it been otherwise Mr. Theodoulou would surly have advised Mr. Margulis of the company’s concerns, would have placed him in the company’s chemical reaction program, would have advised others that he was not to be asked to perform chemical testing and would have ensured that he had alternate work. Therefore, the illegal “taint” which existed after the first work refusal continued on thereby “tainting” the company’s decision to terminate Mr. Margulis’ employment contrary to section 50 of the Act.

32. Accordingly, for all of the foregoing reasons, I find that the responding party breached section 50(1) of the Act when it terminated Mr. Margulis’ employment.

33. Where an employee’s employment is terminated contrary to the Act,

that employee is entitled to a “make-whole” order . Generally that means that the employee will be reinstated to his employment with full back-pay. In this case, the applicant no longer seeks reinstatement, but instead seeks compensation for lost wages up to the date of this decision.

34. The company argues that Mr. Margulis did not mitigate his damages

and in any event that Mr. Margulis would have been laid off in October 1998.

35. The company bears the onus of proof when it asserts that Mr. Margulis did not mitigate his damages. While Mr. Margulis was evasive and vague in answering the questions put to him about mitigation, there is no factual basis for me to find that he did not mitigate. Accordingly, this argument is rejected.

36. I do, however, accept that Mr. Margulis would have been laid off at

the latest in October 1998. Some of the engineers that the company had hired to work on the printer project were laid off because Xerox, which purchased Delphax at that time, ordered that research and development be cut back which resulted in a lay-off. Given the company’s legitimate and serious concerns about Mr. Margulis’ attitude and problems with other employees, I am satisfied that he would have been affected by the lay-off.

37. That leaves the issue of whether Mr. Margulis would have even lasted

until October. In my view, had Mr. Margulis not been discharged when he was and even had he been provided appropriate counselling about the way he dealt with other employees he would have lasted no more than 3 additional months. I base this conclusion on the evidence of his misconduct which I accept, and his refusal to acknowledge any responsibility for that conduct or to even acknowledge that there was

anything lacking in his behaviour. I also am influenced by Mr. Margulis’ conduct at the hearings into this matter where, in my view, he demonstrated an inability to follow or respect legitimate instructions. Accordingly, I assess the damages owing to Mr. Margulis as 3 months’ pay.

38. I remain seized if there are any difficulties in calculating damages owing to Mr. Margulis or if there are other problems implementing this decision.

“Brian McLean”

for the Board