Reasons for decision
Mike Kryshewsky,
complainant,
and
Canada Post Corporation,
respondent.
CITED AS: Mike Kryshewsky
Board File: 25872-C
Neutral Citation: 2008 CIRB 412
July 7, 2008
This is a complaint pursuant to section 147 of the Canada Labour Code, Part II (the Code).
Postal services–Health and safety–Burden of proof–Practice and procedure–Union filed a complaint alleging that the employer had imposed a financial penalty on the complainant for acting in accordance with Part II of the Code–The complainant is a Rural Suburban Mail Carrier–The complainant invoked his right to refuse unsafe work and refused to deliver mail through his vehicle’s right side passenger window–The complainant was concerned about possible injury due to the awkward and repetitive movements required to deliver the mail in this manner–A Health and Safety Officer upheld the complainant’s refusal to work–The employer advised the owners of the rural mailboxes on the complainant’s route that it was discontinuing the delivery of mail to their mailboxes and arranged for customers to pick up their mail at a local post office–It took the complainant less time to deliver the mail to the two community mailboxes and caused his income to drop–The complainant alleged that this reduction in his income was a direct result of his exercising his rights under Part II of the Code–Section 133(6) of the Code reverses the burden of proof and places it on the party alleging that a contravention did not occur–The complainant has demonstrated that a significant reduction in his income occurred shortly after he invoked his right to refuse–The employer therefore has the burden of convincing the Board that the complainant’s reduction in income was not a financial penalty imposed, in whole or in part, because of his invoking his right to refuse unsafe work–The employer has met its burden of proof–The Board is satisfied that the employer’s decision to move to two community mailboxes was done as a result of a finding by a Health and Safety Officer–While different solutions existed, the Board does not find that the employer’s decision to use two community mailboxes, as opposed to accepting the other alternatives, demonstrates that the employer wanted to impose a financial penalty on the complainant for raising safety concerns–Board notes that the use of general mailboxes or community mailboxes was one of the suggestions being discussed by the Joint Health and Safety Committee and by several individuals in this case, including the complainant–The employer’s position before the Health and Safety Officer, as well as its adoption of a solution that had been recommended by various interested parties, has convinced the Board that the unfortunate decrease in the complainant’s income was not a financial penalty imposed for acting in accordance with Part II of the Code–The Board dismisses the complaint.
The Board, consisting of Mr. Graham J. Clarke, Vice-Chairperson, sitting alone pursuant to section 156 of the Canada Labour Code (Part II–Occupational Health and Safety) (the Code), has considered the above-noted complaint.
Section 16.1 of the Canada Labour Code (Part I–Industrial Relation) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing.
Parties’ Representatives of Record
Mr. Gordon Fischer, for Mr. Mike Kryshewsky;
Mr. Zygmunt Machelak, for Canada Post Corporation.
I–Nature of the Complaint
[1] On August 9, 2006, Mr. Mike Kryshewsky filed a complaint alleging that Canada Post Corporation (CPC) had violated section 147 of the Code and had imposed a financial penalty on Mr. Kryshewsky for acting in accordance with Part II of the Code.
[2] This matter was reassigned in May 2008 to the current single person panel, in accordance with sections 12.01(1)(a) and 156 of the Code.
II–Facts
[3] Mr. Kryshewsky is a Rural Suburban Mail Carrier (RSMC) working in the Dauphin, Manitoba area.
[4] In August 2005, Mr. Kryshewsky invoked his right to refuse dangerous work over concerns that he could be hit by other vehicles at a particular location on his route. The matter was resolved with the assistance of a CPC Safety Officer. The Joint Health and Safety Committee also reviewed the matter and considered whether the use of group mail boxes might better address the problem.
[5] While Mr. Kryshewsky was on a six-month leave of absence from September 2005 to March 2006, CPC implemented the Rural Suburban Mail Carrier Safe Work Procedures (SWP). The SWP required RSMCs like Mr. Kryshewsky to deliver his mail to rural mail boxes through his vehicle’s passenger window.
[6] Prior to Mr. Kryshewsky taking his leave of absence, he would exit his vehicle and put the mail in the customer’s mailbox.
[7] On March 9, 2006, just after his return to work, Mr. Kryshewsky invoked, a second time, his right to refuse unsafe work under Part II of the Code and refused to deliver mail through his vehicle’s right side passenger window. Mr. Kryshewsky was concerned about possible injury due to the awkward and repetitive movements required to deliver the mail in this manner.
[8] Mr. Kryshewsky met with a local CPC representative and the Co-Chair of the Joint Health and Safety Committee to explore solutions. They jointly proposed three solutions, including the setting up of GMBs (general mailboxes) at various sites or the hiring of a helper to insert mail from the passenger side. CPC declined these solutions on the basis that the SWP were appropriate.
[9] A Health and Safety Officer appointed under Part II of the Code investigated Mr. Kryshewsky’s second work refusal. Both Mr. Kryshewsky and CPC submitted their views on whether delivering the mail from the passenger side window constituted a danger.
[10] On March 22, 2006, the Health and Safety Officer upheld Mr. Kryshewsky’s refusal to work and confirmed it in an April 12, 2006 written decision. According to the Officer, the repetitive movements required to deliver the mail through the right side window could reasonably be expected to cause injury. Moreover, the need to stop the vehicle on the roadway in front of each mailbox created a danger of being struck by a passing vehicle.
[11] On March 30, 2006, CPC advised the owners of the rural mailboxes on Mr. Kryshewsky’s route that it was discontinuing the delivery of mail to their mailboxes and arranged for customers to pick up their mail at a local post office. CPC later set up two community mailboxes for its customers in the area.
[12] It took Mr. Kryshewsky less time to deliver the mail to the two community mailboxes and caused his income to drop by more than $11,000.00. Mr. Kryshewsky alleged that this reduction in his income was a direct result of his exercising his rights under Part II of the Code.
[13] CPC argued that Mr. Kryshewsky himself had suggested the use of community mailboxes in the past because of safety concerns and that the reduction in income resulted solely from a reduction in the amount of work required. The reduction was not a financial penalty imposed because he exercised his rights under Part II of the Code.
[14] Neither party requested that the Board hold an oral hearing in this case.
III–Legislative Provisions
[15] Section 147(c) of Part II of the Code prohibits an employer from imposing a financial penalty on an employee who acts in accordance with Part II of the Code:
147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee
...
c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.
(emphasis added)
[16] Section 133(1) of the Code allows an employee, or his representative, to make a complaint in writing to the Board:
133.(1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.
[17] In situations involving an employee who invokes the right to refuse dangerous work, section 133(6) of the Code reverses the burden of proof and places it on the party alleging that a contravention of Part II of the Code did not occur:
133.(6) A complaint made under this section in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.
[18] Mr. Kryshewsky has demonstrated that a significant reduction in his income occurred shortly after he invoked his right to refuse.
[19] CPC therefore has the burden of convincing the Board that Mr. Kryshewsky’s reduction in income was not a financial penalty imposed, in whole or in part, because of his invoking his right to refuse unsafe work.
IV–Analysis and Decision
[20] The Board has no doubt that Mr. Kryshewsky’s safety concerns were at all times raised in good faith. Moreover, a Health and Safety Officer agreed with Mr. Kryshewsky that the work he was being requested to perform under the SWP constituted a danger to him.
[21] The Board has nonetheless concluded that CPC has met its burden of proof and has demonstrated that the decision to use community mailboxes was not done in retaliation for Mr. Kryshewsky raising his safety concerns.
[22] The Board is satisfied that CPC’s decision to move to two community mailboxes was done as a result of a finding by a Health and Safety Officer that it was unsafe for RSMCs to deliver mail in the manner being requested of Mr. Kryshewsky.
[23] While different solutions existed, the Board does not find that CPC’s decision to use two community mailboxes, as opposed to accepting the other alternatives, demonstrates that CPC wanted to impose a financial penalty on Mr. Kryshewsky for raising safety concerns.
[24] The Board notes that the use of GMBs or community mailboxes was one of the suggestions being discussed by the Joint Health and Safety Committee and by several individuals in this case, including Mr. Kryshewsky.
[25] Moreover, the Health and Safety Officer’s April 10, 2006 decision summarized CPC’s legal submissions that delivering mail in accordance with the SWP did not constitute a danger. CPC had argued in its response to Mr. Kryshewsky’s raising of his rights under the Code, that certain changes to Mr. Kryshewsky’s vehicle would eliminate any safety concerns.
[26] CPC attempted to defend its SWP, which, if successful would have resulted in the continuation of personal mail delivery to its customers and the related amount of work Mr. Kryshewsky performed.
[27] CPC’s position before the Health and Safety Officer, as well as its adoption of a solution that had been recommended by various interested parties, has convinced the Board that the unfortunate decrease in Mr. Kryshewsky’s income was not a financial penalty imposed for acting in accordance with Part II of the Code.
[28] For all of the foregoing reasons, the Board dismisses the complaint.