1194-00-OH Deborah Zaluski and Tonya Riley, Applicants v. Valthane Inc., Responding Party.
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: Daniel Ublansky for the applicants; Stan Wawrzyniak for the responding party.
DECISION OF THE BOARD; December 11, 2000
This is a reprisal complaint filed under section 50 of the Occupational Health And Safety Act, R.S.O. 1990, c.O-1, as amended (the "OHSA").
The applicants claim that they were laid-off from their employment with the responding party (the "employer") because they acted in compliance with and sought the enforcement of the OHSA.
At the outset of the hearing, the employer requested an adjournment as his legal counsel was not available. After hearing submissions from the employer I denied the request. The notice of hearing is dated October 6, 2000 for a hearing scheduled for November 22, 2000. Both the employer and his counsel were provided with the notice of hearing. By letter dated November 13, 2000 the employer requested a postponement of the hearing as his lawyer was not available in the month of November. This letter was not copied to the applicants or their counsel. The Registrar advised the employer (with copies to all parties including counsel for the employer) by letter dated November 15, 2000 that a party seeking an adjournment of a scheduled hearing must obtain the consent of all parties to the proceeding. The employer was further advised that he could raise his request before the panel hearing the matter. Although it does not appear as though counsel for the applicants' consent was sought by either the employer or his lawyer, counsel for the applicants did respond on November 15, 2000 (presumably as a result of receiving the letter from the Registrar) that the applicants did not consent to the adjournment.
On the day of hearing, further correspondence was received by counsel for the employer. That letter refers to the fact that the employer was of the belief from the pre-hearing meeting that a hearing date would be set in January 2001 subject to availability of counsel. Counsel also asserts that he had a prior trial commitment and advised that his client assumed that his adjournment request of November 13, 2000 would be granted. He states further that it was not until the November 15 correspondence from counsel for the applicants that there was any notice of an objection to the adjournment. He says there was, at that time, no time to deal with this objection. In his letter counsel also refers to other reasons advanced by his client as to why the matter could not proceed.
At the hearing, in its request for an adjournment, Mr. Stan Wawrzyniak ("Mr. Wawrzyniak") advised on behalf of the employer that the employer's legal counsel was not present. He referred to his lawyer's letter to the Board of November 22, 2000 which is outlined above. He stated that he left the pre-hearing meeting held in September with the belief that the matter would be set down for hearing in January or February 2001. After that meeting he received the Board's notice of hearing dated October 6, 2000 setting the matter down for November 22, 2000. In the latter part of October he learned that counsel was not available for that date. He then spoke to various people at the Board and finally wrote the letter of November 13, 2000. In his view, the applicants' objection to the request was something for which he was unprepared and essentially taken by surprise.
The applicants opposed the request.
After careful consideration of the submissions I issued the following oral ruling:
The responding party has requested an adjournment of today's hearing. The reason advanced for the request is that his legal counsel is unavailable. (He also states that necessary witnesses are not present but does not rely on this fact).
The request is denied. The responding party was provided with notice of hearing dated October 6, 2000. In spite of its various discussions and requests, there was no reason for the responding party not to assume that this hearing would proceed as scheduled. It did so at its own risk.
By letter dated November 13, 2000 the responding party requested an adjournment. By response dated November 15, 2000 the Registrar advised the responding party that consent of the applicants must be obtained. By letter dated November 15, 2000 counsel for the applicants advised that they did not consent.
The responding party has had adequate notice of the hearing, adequate time to retain and instruct counsel and accordingly the request for adjournment is denied.
I wish to expand upon those reasons. A request for an adjournment cannot be characterized as a request to which a party is entitled by virtue simply of the request. The employer asserts that it assumed that the request would be granted and therefore conducted itself accordingly in not ensuring that it had counsel at the hearing. Parties who are provided with notice of a hearing are expected to attend, prepared to proceed and if they choose to do otherwise they do so at their peril. The applicants are entitled to have their case heard without undue delay. There are instances when adjournments are granted by the Board. They occur as a result of agreement between counsel or if there are unavoidable situations which the Board recognizes
What the Board is faced with here is an employer who decides that he will obtain the adjournment and then proceeds accordingly. The employer knew in early October that this case was scheduled. He knew in late October that his lawyer was not available.
Counsel had a legitimate scheduling conflict of which the employer was aware a full month before the date of the hearing. Other arrangements could have been made to ensure that the employer's interests were preserved. But in spite of whatever other steps he should or could have taken the one most problematic was to assume that the request would be granted. Parties must assume their cases will proceed unless they are granted an adjournment.
I heard evidence from the applicants, Ms. Deborah Zaluski and Ms. Tonya Riley. The employer did not cross examine the witnesses, call any of its own witnesses or make submissions on its own behalf.
The employer manufactures splash guards for automobiles. The applicants worked for the employer in the position of trimmers. Both of their periods of employment were short; less than two months for Ms. Zaluski and approximately one month for Ms. Riley. Ms. Riley is Ms. Zalusi's daughter. Shortly after she began working with the chemicals in the plant, Ms. Zaluski began experiencing symptoms of illness. She raised health and safety concerns with members of management. Specifically, she asked about WHMIS (Workplace Hazardous Material Information System) training, the availability of MSDS's (Material Safety Data Sheets), and the use of personal protective equipment. She did not receive any responses from either the owners or managers and so on May 15, 2000 Ms. Riley and two other employees sought assistance from the Occupational Health and Safety Branch of the Ministry of Labour. The Ministry contacted the employer, conducted a site visit and issued orders against the employer.
In a subsequent meeting with employees, the employer told the employees that they were not pleased with the contact made with the Ministry of Labour. The employees were advised not to go to the Ministry of Labour again and to report their concerns to the owners instead.
The employer advised that it would hold WHMIS training for employees. The meeting was scheduled for May 31, 2000. At the meeting, the employees were told that there would not be WHMIS training but that the applicants and others were to be laid off, "because of everything that happened".
The applicants rely on section 50(1) of the OHSA which provides:
(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 OHSA or the regulations or an order made thereunder, has sought the enforcement of this OHSA or the regulations or has given evidence in a proceeding in respect of the enforcement of this OHSA or the regulations or in an inquest under the Coroners Act.
In addition they rely on the substantive sections of the OHSA up which Ms. Zaluski's requests regarding health and safety relied; being sections 28(1)(d), 37 and 42.
(1) A worker shall,
(d).......... report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.
- (1) An employer,
(a) shall ensure that all hazardous materials present in the workplace are identified in the prescribed manner;
(b) shall obtain or prepare, as may be prescribed, an unexpired material safety data sheet for all hazardous materials present in the workplace; and
(c) shall ensure that the identification required by clause (a) and material safety data sheets required by clause (b) are available in English and such other languages as may be prescribed.
(2) No person shall remove or deface the identification described in clause (1) (a) for a hazardous material.
(3) An employer shall ensure that a hazardous material is not used, handled or stored at a workplace unless the prescribed requirements concerning identification, material safety data sheets and worker instruction and training are met.
(4) An employer shall advise a Director in writing if the employer, after making reasonable efforts, is unable to obtain a label or material safety data sheet required by subsection (1).
(5) A material safety data sheet expires three years after the date of its publication.
- (1) In addition to providing information and instruction to a worker as required by clause 25 (2) (a), an employer shall ensure that a worker exposed or likely to be exposed to a hazardous material or to a hazardous physical agent receives, and that the worker participates in, such instruction and training as may be prescribed.
(2) The instruction and training to be given under subsection (1) shall be developed and implemented by the employer in consultation with the committee or health and safety representative, if any, for the workplace.
(3) An employer shall review, in consultation with the committee or health and safety representative, if any, for the workplace, the training and instruction provided to a worker and the worker's familiarity therewith at least annually.
(4) The review described in subsection (3) shall be held more frequently than annually, if,
(a) the employer, on the advice of the committee or health and safety representative, if any, for the workplace, determines that such reviews are necessary; or
(b) there is a change in circumstances that may affect the health or safety of a worker.
Ms. Zaluski was reporting hazards, making statutorily protected requests for information and asserting rights in compliance with the OHSA. As counsel for the applicants makes clear, the health and safety concerns do not need to be verified or grounded in the substantive sections of the OHSA in order for a worker to claim the protection of section 50. However, in this case the orders made by the Ministry do serve to verify the applicants concerns.
As stated the employer did not give any evidence nor did it cross-examine the applicant on their evidence. The onus in section 50 cases is for the employer to satisfy the Board that the conduct complained of by the applicants was not a reprisal for having exercised rights under the OHSA. The employer did not meet that onus and I accept the evidence of the applicants in its entirety.
The applicants do not seek reinstatement. They seek damages for loss of wages from May 31, 2000 to the date of this decision. Both applicants gave evidence as to wages earned in employment after the date of lay-off and such amounts are to be deducted from any amount awarded. In addition, the employer advised and the applicants agreed that an amount represented three (3) weeks pay is also to be deducted to account for a plant shutdown in August 2000.
Having regard to the evidence, I find that the lay-offs of the applicants on May 31, 2000 were in violation of section 50 of the OHSA as they were made as a reprisal for their seeking enforcement of their rights under the OHSA.
They are therefore entitled to reinstatement and compensation for loss of wages. They have elected not to be reinstated. They are entitled to compensation for the period from the date of their termination to the date of this decision less amounts deducted pursuant to paragraph 19 above. The applicants earned $8.00 per hour and worked a 42 hour week. The period of loss is 27 weeks. Three weeks are to be deducted for the shut down period. Twenty-four weeks multiplied by 42 hours per week multiplied by $8.00 per hour totals $8,064.00. That is the amount that would have been earned by each of the applicants in the 24 week period. Ms. Zalewski earned $480.00 from other employment during that period; Ms Riley earned $7.60 per hour working 28 hours per week for a 17 week period. The total amount due to Ms. Zalewski is $7,584.00. The total amount due to Ms. Riley is $3,617.60.
DISPOSITION
The responding party violated section 50 of the OHSA when it terminated the applicants.
I order the responding party to pay forthwith to the applicants as follows:
(a) to Ms Deborah Zalewski the amount of $7584.00;
(b) to Ms Tonya Riley the amount of $3617.60.
"Marilyn Silverman"
for the Board