The Crown in Right of Ontario (Ministry of Correctional Services) v. Ontario Public Service Employees Union and Ministry of Labour
2539-01-HS The Crown in Right of Ontario (Ministry of Correctional Services), Applicant v. Ontario Public Service Employees Union and Ministry of Labour, Responding Parties.
2540-01-HS The Crown in Right of Ontario (Ministry of Correctional Services), Applicant v. Ontario Public Service Employees Union and Ministry of Labour, Responding Parties.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; December 31, 2001
Board File 2539-01-HS is an appeal against an Inspector’s orders under the Occupational Health and Safety Act, R.S.O. 1990, c. 0. 1, as amended (“the Act”). Board File 2540-01-HS is an application for suspension of the orders pending the determination of the appeal.
This decision deals with the suspension application. The Ministry of Labour does not opposed the suspension request. OPSEU, who represents the workers in this workplace, has not responded. There is therefore no opposition to the request.
The orders appealed against, which the applicant would like to have suspended, require it, firstly, to develop a health and safety program which will include a policy on violence. The applicant is required “to maintain the program to implement this policy”. This is to be done by January 1, 2002. In addition, the applicant must ensure that “all supervisors and workers are trained on the policy of violence in the workplace”. This must be done by February 1, 2002.
The orders arise out of workplace incidents and subsequent work refusals (which the employer characterizes as unlawful strike action) involving allegations of threatening behaviour by a manager. The Inspector noted that the workers were not exposed to threats and noted that the matter was being dealt with by the employer and the union. The employer contends that there was no evidence upon which to make the orders.
In deciding whether an order or orders should be suspended, the Board takes account of three factors: whether the health and safety of workers would be assured if the order were rescinded; the relative prejudice and the likelihood of success of the appeal.
As regards any danger to the health and safety of workers if the orders are suspended, the employer contends it already has an established health and safety program which addresses workplace violence issues. It also contends there has been appropriate training on a wide array of health and safety issues. Neither OPSEU nor the Ministry of Labour have provided submissions to the contrary.
I consider next the relative prejudice or balance of harm. Immediate compliance with the orders will involve the applicant devoting resources and staff to produce the program and policy, and to train its staff. This will entail cost and effort, which would be irrecoverable if the orders are ultimately set aside. The prejudice to the applicant’s employees if the orders are not immediately implemented is minimal. There is no urgency. Accordingly, the balance of harm favours the applicant’s request. The relative prejudice to the applicant if its request were refused is greater than the prejudice to the applicant’s employees if the request is granted.
There is a significant likelihood of success in the appeal. The applicant says that it has established health and safety policies and it provides appropriate training on a wide array of health and safety issues. It also submits that there was no credible evidence before the Inspector that should have resulted in the orders being made. In addition the employer contends that the timetable for compliance with the orders is unworkable. Given the nature of the order and the factors referred to above, the suspension request should be granted, particularly where there is no opposition to the request by the employees’ bargaining agent.
Having considered the submissions and the circumstances, the orders contained in Report 1031515 are suspended pending the outcome of the appeal in Board File 2539-01-HS.
“Marilyn Silverman”
for the Board