3554-00-OH Lou Neskovski, Applicant v. General Motors of Canada Limited (“GMCL”), Responding Party.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; September 6, 2001
This is an application under section 50 of the Occupational Health And Safety Act (the “Act”). Section 50 of the Act provides as follows:
(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.
(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.
(3) The Board may inquire into any complaint filed under subsection (2) and section 96 of the Labour Relations Act, 1995, except subsection (5), applies with all necessary modifications as if such subsection, except subsection (5), is enacted in and forms part of this Act.
(4) On an inquiry by the Board into a complaint filed under subsection (2), sections 110, 111, 114 and 116 of the Labour Relations Act, 1995 apply with all necessary modifications.
(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.
(6) The Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (1).
(7) Where on an inquiry by the Ontario Labour Relations 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.
(8) Despite subsection (2), a person who is subject to a rule or code of discipline under the Police Services Act shall have his or her complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.
The applicant alleges that his supervisor refused to allow him to go to the First Aid station to obtain “medical treatment for his thumb”. The applicant states he had hit his thumb with a hammer while working at home earlier that evening. The applicant further states that he was not allowed to go to First Aid and was told “either to do his job or go home”.
The applicant states he refused to continue working. After his union steward arrived to investigate what happened, the applicant was escorted out of the plant. The applicant is seeking an order for pay for 7.5 hours and a posting of notices that G.M. management violated the Act.
The responding party, GMCL, submits the applicant has failed to establish a prima facie case for violation of section 50 of the Act. Even assuming all of the allegations are true which the responding party denies, there are no facts alleged that the applicant refused to work for reasons related to the Act.
The responding party submits this application should be dismissed on the grounds that the applicant has failed to establish a prima facie case pursuant to Rule 46 of the Board’s Rules of Procedure.
Decision
Rule 46 of the Board’s Rules of Procedure states:
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
This decision relies on the facts as pleaded by the applicant. In order for the Board to find that there has been a violation of section 50 of the Act, the applicant must show that the discipline was as a direct result of “acting in compliance with this Act” or “seeking enforcement of this Act”. The applicant is not asserting that he was acting in compliance with the Act or that he was seeking to enforce the Act.
Assuming (without finding) that all the facts as stated are true and provable, this application does not make out a violation of Section 50 of the Act. The application does not make out a case for the orders and remedies requested. There are no facts alleged that the applicant was disciplined because he was acting in compliance with the Act or was seeking to enforce the Act.
This application is hereby dismissed.
“Inge M. Stamp”
for the Board